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DOCUMENT RESUME
ED 233 494 EA 016 061
TITLE Teacher Tenure Appeals: Opinions 1-79 to 26-79 of theSecretary of Education. Also Includes 15-77A, 29-77;and 18, 22, 28, 38, and 39 of 1978. Volume IX.
INSTITUTION Pennsylvania State Dept. of Education, Harrisburg.PUB DATE 83NOTE 408p.PUB TYPE Legal/Legislative/Regulatory Materials (090)
EDRS PRICE MF01/PC17 Plus Postage.DESCRIPTORS Behavior Standards; Board of Education Policy; Career
Change; Competence; *Court Litigation; Due Process;Educational Malpractice; Elementary SecondaryEducation; Moral Issues; School Districts; *SchoolLaw; Social Behavior; *State Departments ofEducation; *Teacher Dismissal; Teacher Effectiveness;Teacher Evaluation; *Tenure
IDENTIFIERS *Pennsylvania
ABSTRACTDecisions by the Pennsylvania Secretary of Education
contained in this publication are on appeals made by 33 professionalschool personnel against actions taken by their school boards. Foreach case, the employee (appellant) and district (appellee) are citedwith a teacher tenure appeal number, the reason for the appeal,findings of fact that summarize the actions of the appellant andappellee, a discussion of the case citing relevant legal precedents,and the decision made by the secretary. At the end of the publicationthe 33 cases are categorized under causes for dismissal as follows:immorality, persistent and willful violation of school law,persistent negligence, professional employee status, incompetency,demotion in type of position, demotion in salary, accumulated sickleave and sabbatical, entitlement of back pay, and mandatoryretirement age. (MLF)
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U.S. DEPARTMENT OF EDUCATIONNATIONAL INSTITUTE OF EDUCATION
ED.ICATIONAL RESOURCES INFORMATIONCENTER IERICI
XThis document has been reproduced asreceived from the person Or organizationoriginating it.Minor changes have been made to improvereproduction quality.
Points of view or opinions stated in this do:u-ment do not necessarily represent official NIEposition or policy.
"PERMISSION TO REPRODUCE THISMAT AL HAS BEEN GRANTED BY
TO THE EDUCATIONAL RESOURCESINFORMATION CENTER (ERIC)."
Teacher Tenure Appeals
OPINIONS1 m179 to 2W19
of the Secretary of EducationAlso includes 15-77A, 2144 and 18, 22, 28, 38, and 39 of 1978
,in 3
Volume IX
Under thePublic School Code,
Act of March 10, 1949,P. L 30, as amended
Commonwealth of PennsylvaniaDepartment of Education
1983
COMMONWEALTH OF PENNSYLVANIA
Dick ThornburghGovernor
Robert C. WilburnSecretary of Education
Michael A. DavisChief CounselDepartment of Education
STATE BOARD OF EDUCATION
John 0. HersheyChairman
Jane S. AbrahamsSister M. Lawreace AntounMadge K. BenovitzKeith DomsAnna Lee DowlingDonald W. FoxDavid E. GalbreathElizabeth HarperEarl HortonPaulette D. JohnsonWilliam P. KimmelHerbert P. LauterbachTern E. Polaski
Jeffrey GrotskyExecutive Secretary of the Board
ACKNOWI:EDGMENTS
,Vick' Young, Secretary ."" -.1
Kay DeFi:ippo, Administrative OfficerGre Parker, Legal AssistantLinda J. Wells, Assistant Counsel
4
CONTENTS
OPINIONS Page
No. 15-77A Mary Burke Occhipinti v. Board of School Directors of theOld Forge School District (April 29, 1981) 1
No. 29-77 Charles Hackenberry, Jr. v. Board of School Directors ofMifflin County School District (January 4, 1982) 6
No. 18-78 William Harr v. Carmicbaels Area School District(February 21, 1980) 15
No. 22-78 Rebecca Raybuck v. DuBois Area School District(December 19, 1979) 29
No. 28-78 Howard H. Moon v. Board of School Directors of the BethelPark School District (November 6, 1980) 36
No. 38-78 Joseph Allan Raymond v. Western Wayne School District(September 30, 1980) 46
No. 39-78 Barbara C. Beck v. York City School District(February 5, 1982) 55
No. 1-79 David M. Bendl v. Board of School Directors of theGreater Latrobe School District (July 25, 1979) 59
No. 2-79 Douglas A. Behn v. Board of School Directors of BethelPark School District (December 12, 1979) 72
No, 3-79 Albert G. Burton v. Board of School Directors ofGeneral Braddock Area School District (July 2, 1979) .... 87
No. 4-79 C. Michael Noble v. Lincoln Intermediate Unit No. 12(September 10, 1979) 102
No. 5-79 Patricia Brumbaugh v. Board of School Directors of theTussey Mountain School District (September 10, 1979) 125
No. 6-79 Stanley Malecki, et al. v. Beaver Co. Area Vocational-Technical School (Appeal withdrawn January 21, 1980)
No. 7-79 Marjorie Brennan v. Berwick Area School District(August 24, 1981) 135
No. 8-79 James P. Weaver v. the Uniontown Area School District(December 27, 1979) 152
No. 9-79 Bette T. Kroll v. Bethel Park School District(November 30, 1981) 171
No. 10-79 Russell C. Thomas v. Board of School Directors,Pottstown School District (February 29, 1980) 180
etat a
I, 5
No. li-79
No. 12-79
No. 13-79
No. 14-79
No. 15-79
No. 16-79
No. 17-79
No. 18-79
No. 19-79
No. 20-79
No. 21-79
No. 22-79
Page
Lee Davis v. Eastern York School District(Appeal withdrawn October 16, 1979)
Roger J. Morgan v. Altoona Area School District(December 7, 1979) 187
Carroll Bittner v. Jersey Shore Area SchoolDistrict (February 12, 1982) 193
Joseph C. Brown v. Harrisburg School District(Appeal withdrawn January 8, 1980)
Lewis Ziegler v. Ridgway Area School District(September 19, 1980) 207
Michael Micklow v. Fox Chapel Area School District(October 2, 1981) 214
Ruth S. Grant v. Board of Education of CentennialSchool District (August 10, 1981) 238
Myron L. Fasnacht v.(September 4, 1980)
Judith Gurmankin v.
Eastern York School District
School District of Philadelphia
253
(February 11, 1982) 271
John A. Mignon v. Radnor Township School District(February 26, 1981)
Annabelle Miller v. Midwestern Intermediate Unit(Appeal withdrawn February 20, 1980)
275
Florence Ryan v. Board of School Directors ofLackawanna Trail School District (January 4, 1982) 301
No. 23-79 Raymond M. Pecuch v. California Area SchoolDistrict (September 9, 1980) 320
No. 24-79
No. 25-79
No. 26-79
Frederick W. Brown(January C, 198
Gary L. Andrews v.(October 21, 1980)
Bernice I.
v. Abington School District
Lebanon Area School District
v. North Penn School District
336
360
(September 19, 980) 374
399
LIST OF CASES OF DEMOTION 402
LIST OF CASES AND CAUSES FOR DISMISSAL
ii
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
MARY BAKE OCCHIPINTI,Appellant
v. TEACHER TENURE APPEALNO. 15-77A
BOARD OF SCHOOL DIRECTORS OFTHE OLD FORGE SCHOOL DISTRICT-,"
Appellee
OPINION
The Appeal of Mary Burke Occhipinti, the Appellant herein, is
before the Secretary of Education on remand by Order dated December 17,
1979 of the Commonwealth Court of Pennsylvania (No. 2715 C.D. 1978).
FINDINGS OF FACT
1. On May 31, 1977 Appellant was notified by the Superintendent
of the Old Forge School District, that she was suspended from her teaching
duties at the end of the school day because her 5 year interim teaching
certificate had expired, she admitted she had not taken all the courses
necessary to. qualify for professional certification and that therefore
she was not lawfully certificated to'teach.
2. On July 5, 1977, following a hearing before the Board of
School Directors, Appellant was notified by letter that the Board voted
to dismiss her, effective May 31, 1977, because she was not lawfully
certificated.
3. Appellant filed an appeal with the Secretary of Education on
July 20, 1977.
4. In the summer following her dismissal, Appellant took the five
.courses she needed for certification and in September 1977 the Department
of Education issued her a professional certificate.
5. Following a hearing, by Order dated October 26, 1978, the Secretary
of Education dismissed Appellant's appeal and sustained the July decision
of the school board dismissing Appellant for lack of certification.
6. On November 21, 1978, Appellant appealed the Secretary's decision
to Commonwealth Court.
7. In its decision Commonwealth Court held that Petitioner (Appellant
herein) did not receive a fair and impartial hearing before the local school
board because the school district superintendent testified against Petitioner
(Appellant herein) and participated in the deliberations following her
hearing.
8'. By Order dated December 17, 1979 the Commonwealth Court held
as follows:
. . . the order of the Secretary of Education affirmingthe dismissal of Mary Burke Occhipinti is herebyreversed and the matter is remanded zo the Secretaryfor remand to the Board of School Directors of theOld Forge School District for further proceedingsconsistent with this opinion."
DISCUSSION
It is clear in the opinion of the Commonwealth Court in this matter
that the Court's order is based on its conclusion that Appellant aid not
receive a fair and impartial hearing before the Board of School Directors
of the Old Forge School District. Occhipinti v. Board of School Directcrs
of the Old Forge School District, Pa. Commw. Ct. 408 A.2d 1189
(1979). The court stated that the district superintendent both testified
against Appellant and participated in the school board deliberations
following the hearing awl that this conduct deprived Appellant of a fair
and impartial hearing. This due process violation required a reversal
of the Secretary's Order which had affirmed the Board's decision to
dismiss.
In rendering its opinion Commonwealth Court,,eited Department of
Education v. Oxford Schools, 24 Pa. Commw. Ct. 421, 356 A.2d 857 (1976)
as controlling. The same due process violation occurred in Oxfori: the
A
superintendent testified at the school board hearing and participated in
the board's deliberations. On appeal the Secretary of Education reversed
the board's decision and reinstated the teacher.- On further appeal the
Commonwealth Court reversed the Secretary's decision as to reinstatement
with these words:
We do not agree;that [the Secretary] properlyordered reinstatement. . . This Court, as wellas our Supreme Court, has generally adheredto the view that where procedural,defects haveoccurred, the proper remedy is a remand forproper procedural disposition. Id., 356 A.2dat 862
Quoting Donnon v. Downingtown Civil Service Commission, 3 Pa. Commw. Ct.
366, 283 A.2d 92 (1971), the Court stated: "Remand for a proper hearing
regardless of the result, insures the integrity of administrative process."--------
Id., 356 A.2d at 862.
We are bound by Oxford and by the clear direction in the Court's
December 17, 1979 Order in this matter. Although Appellant received a
3
procedurally impro er hearing below, the school board otherwise acted
properly. The board acted as if felt it was required by the constraints
of Sections 1201 and 1 02 of the Public School Code, 24 P.S. §§12-1201,
12-1202, which mandate v lid certification as a pre-condition to employment
as a teacher.
The Commonwealth Court opinion in this matter did not discuss nor
dispute the factual findings teat at the time of dismissal Appellant's
five year interim certificate h expired andthat as of the expiration
date Appellant had still not take the five courses shy needed for
permanent certification nor had she,offered any reasons for her failure
to do so. Appellant's later completi?n of the necessary courses for
permanent certification dbes not alter the facts upon which the board
based its decision as of ihe time of the hearing. Neither do later
developments alter the Secrstary's review of the board's action as of
the time the action was taken.
Accordingly, we make the following:
1 t)
ORDER
AND NOW, this 29th day of April 1981, it is hereby ordered that
the appeal of Mary Burke Occhipinti is remanded to the Board of School
Directors of the Old Forge School District for further proceedings to
cure the improper hearing in a manner consistent with the opinion of
the Commonwealth Court in this matter, 408 A.2d 1189 (1979).
s
Robert G. ScanlonSecretary of EducationPennAylvania Department of Education
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
CHARLES R. HACKENBERRY, JR.,Appellant
v.
BOARD OF DIRECTORS,MIFFLIN COUNTY SCHOOL DISTRICT,
Appellee
Teacher Tenure AppealNo. 29-77
OPINION
Appellant, Charles R. Hackenberry, Jr., has appealed, under Section
1131 of the Public School Code of 1949, hi.s suspension and subsequent
dismissal on the ground of immorality by'the Board of Directors of the
Mifflin County School District (hereinafter referred to as the Board) -as
a professional employee of the District.
FINDINGS OF FACT
1. _ Appellant, was a prOfessional employee of. the Mifflii County,
School District. (NI, 14)*
2. By letter, dated September 18, 1974, Appellant was suspended
from his position as a teacher by District Superintendent Walk on the
basis of charges that he had violated three'(3) sections of the "Con-
trolled Substance, Drug, Device and Cosmetic Act." (Board's,Ex. 2)_ .
3. In September of 1974, a.c"riminal prosecution for violation of
the Controlled Substance, Drug, DeviCe and Cosmetic Act was initiated
against Appellant. 7(NII, 34, 32, 43)
* Hereinafter "NI" will refer to notes of testimony before the Board ofOctober 130 1977, and "NII" will refer to notes of October 19, 1977.
6
4. The prosecution was a consequence of search of a house in
Lewistown conducted on or about September 1974 by police officers of the
Borough of Lewistown, Pennsylvania.
5. Appellant, his wife and children were in the house when it was
searched by the police. (NII, 35)
6. A substance believed by the police to be marijuana was found
during the search. (NII, 36, 37)
7. The substance was in fact determined to be marijuana. (NI 89,-
90)
8. In Appellant's criminal prosecution a suppression hearing was
held which led to a March 25, 1975 decision by the Court of Common Pleas
suppressing the marijuana as having been obtained unlawfully by use of a
defective search warrant and impounding the record and adjudication in
the criminal prosecution. (NII, 60)
9. Both parties to the criminal prosecution appealed the March 25,
1975 decision; both appeals were terminated by a judgment of non pros on
March 8, 1976.
10. By letter of August 10, 1976, Appellant was given notice of a
hearing to be held August 23, 1976 relative to his suspension and also a
charge of immorality for having possession of "quantities of marijuana
plants." (Exhibit B)
11. Said hearing was not held because Appellant brought an Action
in Equity on August 16, 1976 (Civil Action No. 1481 of 1976) in the Court
of Common Pleas of Mifflin County against the Mifflin County School
District Board of Directors seeking to enjoin the Board's use of the
suppressed evidence against Appellant at the dismissal hearing.
7 13
12. By adjudication, dated February 23, 1977, the Court of Common
Pleas of Mifflin County found that it was without jurisdiction to.enjoin
the use of the suppressed evidence in the hearing before the Board''
because Appellant had an adequate remedy at law in that he could appeal
any alleged unlawful use of the evidence by the Board to the Commonwealth
Court.
13. Although not necessary to its rulii4, the Court in its opinion
stated its position that the purpose of the exclusionary rule-would ritit---
be served by allowing its application to suppress evidence in a civil
dismissal proceeding. (Court of Common Pleas of Mifflin County, Civil
Action No. 1481 of 1976, Opinion page 2 and footnote 3)
14. In September of 1977, by a pleading styled "Petition for
Assumption of Jurisdiction," Appellant requested the Secretary of
Education to intervene in his case due to the failure of the Board to
schedule a hearing.
15. The Board gave Appellant his hearing in October 1977 after it
was able to obtain from the Court of Common Pleas of Mifflin County the
physical_evidencejmarijuana) which had been- impounded -in Appellant's--
criminal prosecution.
16. The only charge brought by the Board against Appellant consisted
of possession of the aforesaid marijuana.
17. The evidence of possession of marijuana used before the Board
was the same evidence that had been suppressed by the Court of Common
Pleas of Mifflin County in the criminal case. (NI, 27)
18. On December 16, 1977, after the hearing before the Board, the
Board sustained Appellant's suspension and also dismissed him. (NII,
127-133)
8
14
19. By a pleading styled "Notice of Appeal," dated January 17,
1978, Appellant appealed his suspension and dismissal to the Secretary of
Education.
20. Appellant thereafter filed an "Amended Petition of Appeal"
enumerating his reasons for appealing.
21. A hearing on the Appeal was held on August28, 1978.
DISCUSSION
The major issue presented by this appeal is whether evidence, which
a court has ruled inadmissible in.a criminal proceeding against a profes-
sional employee, may be used by a school district against the professional
employee in a subsequent dismissal hearing. We hold that it may as
discussed later in this opinion.
Appellant also raises other questions regarding procedures at the
dismissal hearing and the failure of the Board to grant him a timely
hearing on his suspension. We will deal with these questions first. We
note that there was, as Appellant argues, a three-year period between
Appellant's suspension without pay and the hearing which the Board
ultimately granted to him. It is the School Board's duty to schedule a
hearing in a timely fashion when an employee hos a statutory right to the
hearing. Although Appellant did not request a hearing, the court has
stated it is not an excuse that an employee has made no specific request
for a hearing. Coleman v. Board of Education of School District of
Philadelphia, 477 Pa. 414, 383 A.2d 1275, 1280 (1978). However, the
Board in this case argues that the delay was not due to failure to
request a hearing but was due to Appellant's own actions in moving to
9
suppress the evidence in his criminal trial and then, after successfully
suppressing it there, pursuing further legal action to enjoin the Board
from using the suppressed evidence at his civil dismissal hearing.
Although the Board may reasonably have felt compelled to postpone
its hearing pending a determination in the legal actions concerning
admissibility of evidence, it is our opinion that notice to a professional
employee specifying the acts that the Board believes the employee to have
done, and specifying the harm the Board felt the employee's continued
presence in the school would cause, along with a date set for a hearing,
should be issued in a timely fashion. Clearly the Board in this case
felt it was pursuing the matter as efficiently as it could given the
criminal actions occurring and the action to enjoin the Board which
addressed the same evidence disputed in the criminal action. The Board-
scheduled hearings which did not occur because of Appellant's action to
enjoin use of evidence and also due to the court's impoundment order
against release of evidence. Appellant did not request a Board hearing
until three years after his suspension nor did he take any action in
Common Pleas Court to mandamus the Board to grant him a local agency
hearing on suspension for that three years nor for three years did he ask
the Secretary of Education to compel the district to grant him a hearing;
The Appellant cannot now complain of the Board's failure to schedule a
hearing in a more timely fashion.
Appellant also raises procedural questions regarding lack of speci-
ficity in the Board's charges against him, bias on the part of Board
members, bias on the part of the Board's solicitor, improper admission of
hearsay testimony, improperly permitting a police officer to state-an
1016
opinion relating to the quantity of marijuana seized, failure of the
solicitor to allow voir dire of Board members, improper admission of a
newspaper article into evidence and failure of the Board to make findings
of fact in its decision. These issues have been addressed by existing
c "se law and it is our finding that Appellant's arguments are without
merit. Lucciola v. Commonwealth, Secretary of Education, 360 A.2d 310,
25 Pa.Commw.Ct. 419 (1976); McCoy v. Lincoln Intermediate Unit No. 12, 38
Pa.Commw.Ct. 29, 391 A.2d 1119 :78); Nagy v. Belle Vernon Area School
District, Pa.Commw.Ct. 412 A.2d 172 (1980); Ceja v. Unemployment
Compensation Board of Review, Pa. , 427 A.2d 631 (1981).
Appellant also raises a question as to the Board's authority to
suspend him in 1974. The implied authority to suspend has been found in
instances where a school district acts in the interest of the welfare of
the children. Kaplan v. School District of Philadelphia, 388 Pa. 213,
130 A.2d 672 (1957). The court has further noted that the basis for such
implied power must fall when the subsequent discharge is reversed as
improper. Shearer v. Secretary of Education, Pa.Commw.Ct. , 424
A.2d 663 (1981) It is our opinion that the district in this instance
reasonably decided to remove Appellant from the classroom in the interest
of the children's welfare because of the severity of the drug charges
filed against him. The subsequent dismissal of the Appellant is also
found herein to be proper and based on substantial evidence as discussed
below.
We must now turn to the question of whether the evidence of possession
of marijuana was properly admitted by the Board in the dismissal hearing.
11r:
The Court of Common Pleas of Mifflin County ruled in Appellant's criminal
woceedingthat the evidence to be used against him regarding the charge
of possession of marijuana was illegally seized. This ruling was based
upon a technical deficiency in the search warrant. Subsequently the same
court ruled it had no jurisdiction to suppress the evidence in the
hearing before the Board. The Secretary of Education must therefore now
determine whether the evidence was properly admitted against Appellant in
the civil dismissal proceedings before the School Board.
The exclusionary rule of evidence has been traditionally applied
only in criminal cases to exclude evidence seized in violation of the
Fourth and Fourteenth Amendments to the United States'Conatitution. The
courts have also made the rule applicable to certain proceedings which
are referred to as being of a "quasi-criminal" nature. See Commonwealth v.
One 1958 Plymouth Sedan,-414 Pa. 540, 201 A.2d 427 (1964); One 1958
Plymouth Sedan, 280 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965);
Pennsylvania Liquor Control v. Leonardziak, 210 Pa. Super. 511, 223 A.2d
606 (1967); Glass v. Commonwealth Department of Transportation) Bureau
of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975); United States v.
Calandra 414 U.S. 338, 94 S.Ct. 613 (1974) and U.S. v. Janis, 428 U.S.
433, 96 S.Ct. 3021 (1976).
In each case the court's key question has been whether the hearing
is quasi-criminal in nature, so as to fall within the reasoning of Sedan
and Leonardziak, supra, or whether the case is purely civil. Speaking of
the exclusionary rule in U.S. v. Janis, 428 U.S. 433, 96 S.Ct. 3021
(1976), the United States Supreme Court refused to extend its application
to civil matters stating it "never has applied it [the exclusionary rule]
12
to exclude evidence from a civil proceeding, Federal or State." The
United States Supreme Court in the earlier One 1958 Plymouth Sedan,
supra, emphasized that its decision therein rested on the distinction
that the proceeding in question was quasi-criminal. In the Pennsylvania
Supreme Court decision in that Cone, Commonwealth v. One 1958 Plymouth
Sedan, 414 Pa. 540, 201 A.2d 427 (1964), the Pennsylvania Court also
stated its opinion that the exclusionary rule is inapplicable to purely
civil proceedings.
A teacher dismissal proceeding is conducted pursuant to the Public
School Code. It is a purely civil matter.' We note this opinion is
shared by the Court of Common Pleas ruling in thiS matter at the suppres-
sion hearing. (See Findings of Fact 11, 12 and 13.) The purpose of the
exclusionary rule is not advanced by allowing its application in a
.teacher dismissal action. Therefore, the evidence in question was
properly admitted against Appellant. The Board properly considered the
evidence and found substantial evidence, reflected in the record before
the Secretary, in support of the suspension and subsequent dismissal.
Accordingly, we:enter the following:
1The California Courts have addressed this precise question--extensthe exclusionary rule to a teacher dismissal hearing on charges ofimmorality--and found the rule should not be applied in dismissal pro-
ceedings. Governing Board of The Mountain View School District of LosAngeles, County v. Frank Hamilton Metcalf; 36 C.A. 3d 546, 111 Cal, Rpts.
724 (1974)
t \
13
13
ORDER
NOW, this 4th day of January, 1982, it is hereby ORDERED AND
DECREED that the decisicn af Lhe Board of School Directors of the Mifflin
County School District is upheld and the Appellant's Petition of Appeal
is dismissed.
2GcC c, 47-
14
zu
Robert G. ScanlonSecretary of Education
'2
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
WILLIAM HARR,Appellant
v. Teacher Tenure Appeal
CARMICHAELS AREA No. 18-78
SCHOOL DISTRICT,Appellee
OPINION
William Harr, Appellant herein, has appealed from a decision of the
Carmichaels Area-School District, dismissing him as a professional
employee,
FINDINGS OF FACT
1. Mr. Harr, Appellant, was a professional employee of the
Carmichaels Area School District (hereinafter district).
2. For the last six years of employment with the District he was
principal of the Carmichaels Area Junior-Senior High School. (N.T. 219)
3. For the preceding ten years Appellant was a science teacher in
the district. (N.T. 119-120)
4. Appellant was on sabbatical leave for the first semester of
the 1977-78 school year. (N.T. 17)
5. On January 19, 1978, at a school board meeting, Appellant was
suspended without pay as of the beginning of the second semester of the
school year 1077-78. (N.T. 121)
6. On February 10, 1978, Appellant was notified, by certified
letter, of a statement of charges against him and that a dismissal
hearing had been scheduled to hear the charges. (N.T. 121)
15 ,
2'
7. The charges filed against Appellant and several clarifying
letters sent thereafter alleged that Appellant had violated Sections 511
and 610 of the Public School Code based on speelic purchases made with
monies from the Student Activities Account General Fund. (N.T. 14, 15)
O. . 2S rnMnh 21- 1978 a dismissal hearing was held_
before the School Board of the Carmichaels Area School District.(here-
inafter board).
9. At the board hearing of February 28, 1978, Appellant was
charged pursuant to Section 1122 of the School Code with immorality and
persistent and willful violation of the school laws based on the purchases
set forth in the statement of charges. (N.T. 26)
10. In the fall of 1977, Appellants in his capacity as principal,
received an advertisement for a grandfather clock kit from the Emperor
Clock Company. (N.T. 220-221)
11. In January 1977, Appellant ordered the clock kit using a check
drawn on the high school Activities Account and signed by the bookkeeper
of that fund. (N.T. 39, 222, 215)
12. The clock kit was delivered in the spring, 1977, to the
Carmichaels Area Junior-Senior High School. (N.T. 181, 222)
13. In June, 1977 Appellant ordered a second clock kit and a
butler table kit from the Emperor Clock Company. (N.T. 40, 225)
14. The June purchases were made by a check requested by Appellant,
drawn on the high school Activities Account and signed by the bookkeeper
of that fund. (N.T. 215, 227)
15. In the summer of 1977, tt-- June purchases were delivered,in
part,to the Carmichaels 'Area Junior-Senior High School together with a
post office claim slip for the remaining packages. (N.T. 181, 226)
2216
16. Appellant claimed the remaining packages which he initially
took to his residence; Appellant delivered the packages in November,
1977, unopened, to the Carmichaels Area Junior-Senior High School.
(N.T. 226, 114, 192)
17. In March, 1977 Appellant purchased a stereo from the Radio
Shack using a check drawn on the high school Activities Account and
signed by the bookkeeper of that fund. (N.T. 40, 236)
18. The stereo was delivered to the Junior- Senior High School and
was kept in plain view in Appellant's office in the Junior-Senior High
School until he took it to his home'the in the summer before commencing
his sabbatical leave. (N.T. 234-236)
19. The.setero was used in at least one student function, the
senior picnic. (N.T. 235, 201)
20. The stereo was returned to the district in November, 1977.
(N.T. 140)
21. Appellant testified that he made all of the purchases for the
district but that subsequent to the purchase of the first clock kit he
decided to keep the kit himself, therefore, reimbursed the Activities
Account and purchased a second clock kit for the district's shop class.
(N.T. 223, 226)
22. Appellant discus.sed the purchases with district staff at
various times. (N.T. 207, 221, 222)
23. The shop teacher testified that he discussed at least one
clock purchase with Appellant and that he may have approved the purchase.
(N.T. 207)
17 2
24. All items purchased were delivered to the Junior-Senior High
and kept in plain view. (N.T. 225, 193, 112)
25. In November 1977 and January 1978, Appellant met with the
district superintendent and other district personnel, at the super-
intendent's request. to discuss the above purchases. (N.T. 95, 117, 118,
237-238)
26. Appellant, as principal of the Carmichaels Area Junior- Senior
High School, was responsible for supervision of, the monies in the Activities
Account General Fund from which the purchases were made. (N.T. 108,
215, 224)
27. The bookkeeping records of the Activities Account, including
the General Fund, were kept by William Nesmith, the bookkeeping and
business teacher for the Carmichaels Area Junior-Senior High School.
(N.T. 210)
28. Mr. Nesmith signed the checks to purchase the clock kits,
butler table and stereo. (N.T. 215)
29. There were no written school board regulations or policies
governing the use of the Activities Account Geaeral Fund. (N.T. 108,
109, 112)
A ti
Appellant was given no oral directives on the use of the
Account. (N.T. 109, 111)
31. In years prior to 1977-78 various other items of school property
were purchased with funds from the Activities Account General Fund.
(N.T. 110, 174, 175, 232)
32. The Activities Account General Fund includes monies deposited
from the 12 or 14 clubs in the Junior-Senior High School.
,33. The deposits to the Activities Account General Fund were made
by placing money in envelopes, cash boxes, candy tins, other containers
or placing it loose in a bag kept behind the desk'of the principal's
secretary; there was no requirement that deposits be identified. (N.T.
211, 215, 216, 253)
34. Mr. Nesmith, as bookkeeper, testified that when he received
unidentified deposits he simply added them to the.General Fund. (N.T.
215, 216)
35. An audit of the district's Activities Account, including the
General Fund, was conducted by Milanovich and Company, Inc., a certified
public accounting firm, for the 1975-76 school year. (N.T. 46)
36. Following the 1975-76 audit, the district was notified by the
'auditors that controls were needed for handling the fund; in the Activities
Account especially regarding the identification and documentation of
cash receipts. (N.T. 47-48)
37. Controls for handling the Activities AccOunt General Fund were
riot developed by the diatrict following the 1975-76 audit.
38. An audit of the district's Activities Account, including the
General Fund, was again conducted by Milanovich and Company, Inc. for
the 1976-77 school year. (N.T. 33, 48)
39. Following the 1976-77 audit, the auditors again notified the
district that controls were needed for handling the receipts in the
Activities Account. (N.T. 50)
40. Numerous unexplained debits and credits were discovered in the
audit of the Activities Account; the purchases requested by Appellant
were among the items questioned.
19,2 5
c
41. Jt was impossible to determine by a review of the recorea of
the Activities Account General Fund precisely'cwhat monies were paid into
or out of the Fund, when all the various transations occurred, the 1
purposes of the transactions, or who made the
rabsactions. (N.T. 50-
55, 108, 211, 223)
Ari _
---
42. _On March 28, 1978, Appellant was pismissed fro his position
ij
as a professional employee of tae district on the basis of misuse of
school funds and converting school property to his own use.
43: On April 13, 1978, Appellant filed an Appeal with the Secretary
of Education pursuant to Section 1131 of the Public School Code.
44. A hearing on the Appeal was held on June 28, 1978 before a4.
Hearing Examiner acting on behalf of the Secretary of Education.
r Ca
DISCUSSION
This Appeal presents three issues: (1) did the board act properly
in suspending Appellant; (2) was the notice of charges received by
Appellant prior to his dismissal hearing legally sufficient; and (3)
did the .board-have-substantial evidence to support the charges for which
Appellant was dismissed.
,We conclude that: (1) the indefinite suspension of Appellant
prior to a hearing, without pay and without notice of charges was not
proper; (2) that.the notice of charges received by Apvilant was legally
sufficidnt; and (3) that the record does not contain substantial evidence
in support of the charges against Appellant. Therefore, we reverse the
decision of the board'diUmissing Appellant and order that he be reinstated
effective the first day of the second semester of'the 1977-78 school year,
the date of his improper suspension.
Suspension is expressly permitted under Section 1124 of the Public
School Code of 1949, Act of March 10, 1949, P:L. 30, ap amended, 24 P.S.
411-1124 thereinafter referred to as the PUblic School Code). It has
also been recognized, in limited circumstances, as being within 'the in-vg
herent authority of a school board provided there is just cause for the
suspension and that'it is disciplinary and/or necessary for the welfare
of students. Kaplan v.'6chool 5i'trict of Philadelphia, 388 Pa. 213, 130
C7A.2d 672 (1957); Mitchell v. the School District of Philadelphia, Teacher
"L., ,
Tenure Appeal NO. 28-78 (1978) The district herein makes no claim that
their suspension action waSl'Aien issuant to a cause enumerated in4. \........,
.
Section 1124 on suspension. 'Therefore, it is prAkumably under the claimge,x
of inherent authority to suspend that the board has acted in this matter.
21
27
It is the opinion of the Secretary that the facts of the instant
case do not support the con sion that the board acted properly in sus-
pending Appellant. The inherent authority of a school board to suspend
a professional employee for a reason not enumerated in Section 1124 of the
School Code has been very narrowly construed. In the case before us the
board suspended Appellant without pay with no prior notice or hearing.
Appellant did not receive a statement of charges until over three weeks
after the suspension decision by the board. A hearing was not granted
until Appellant had been suspended without pay for six weeks. There is
no evidence that Appellant was suspended for disciplinary reasons or because
he presented a threat to students. Neither of those assertions would, in
fact, be arguable in light of the undisputed fact that at the time the
suspension decision was made, Appellant was on sabbatical leave and therefore
was already physically absent from his position and not in contact with
students.
Accordingly, we conclude that the board abused its inherent authority
to suspend professional employees when it summarily removed Appellant from
his position as principal.
The second issue before the Secretary is whether the charges which Appel-
lant ultimately received from the board, prior to his dismissal hearing, were
legally sufficient. Addressing this question Commonwealth Court has stated:
As long as the substance of the charges furnished the professionalemployee refers to one of the valid causes for dismissal underSection 1122, statutory and constitutional requirements aresatisfied. Lucciola v. Commonwealth, Secretary of Education,25 Pa. Commw. Ct. 419, 360 A.2d 310, 312 (1976)
Appellant herein received a letter from the board which detailed several
specific acts (referred to above in Findings of Fact 11-17) which the
board considered improper. The letter additionally alleged that because
of these acts Appellant had violated two enumerated sections of the School
22 23
Code. Appellant is correct in asserting that several letters were exchanged
between the parties before the enumerated sections of the School Code
were correctly cited to Appellant. It is also correct that the board's
charges did not specifically state that violation of the enumerated sections
constituted persistent and willful violation of the school laws, a cause
enumerated for dismissal under Section 1122 of the School Code. However,
it is the opinion of the Secretary that the statements received by Appellant
were legally sufficient to very accurately apprise him of the alleged acts
which the board intended to present a cause for his dismissal and against
which he would have to defend himself. Accordingly we find that Appellant
was not denied due process and the board did not commit a due process error
requiring reversal of their decision.
The third issue before the Secretary is whether the board had sub-
stantial evidence to support a dismissal for persistent and willful
violation of the school laws or immorality based on Appellant's management
and use of funds in the Activities Account General Fund. The presence of
substantial evidence necessary to justify dismissal "is determined by
whether a reasonable man acting reasonably might have reached the same
decision reached by the board." Penn Delco School District v. Thomas
Urso, 33 Pa. Commw. Ct. 501, 382 A.2d 162 (1978), citing Landi v. West
Chester Area School District, 23 Pa. Commw. Ct. 586, 353 A.2d 895 (1976).
The board herein, after several clarifying letters, claimed that
Appellant violated Sections 610 and 511 of the Public School Code, 24 P.S.
436-610, 5-511. Section 610 addresses the use of school funds by the beard
of school directors:
"The board of school directors in every school district_ shall
have the right to use and pay out, in the manner hereinprov ied,
any funds of the district for any and all purposes therein provided,subject to all provisions of this act. The use or payment of any
23 23
public school funds of any school district, in any manner or for
any purpose not provided in this act, shall be illegal." 24 P.S.
f6-610, emphasis added
The relevance of this section to Appellant's management of the Activi-
ties Account General Fund is no where explained by the district. Nor
did the district explain how Appellant, who is not a board member,
could violate a Public School Code section which governs the action of
school board members. It is the finding of the Secretary that Appellant,
a school principal, could not act in violation of Section 610. Arguably
the board could violate this section by knowingly allowing a district
employee to misuse funds. However, only the board's violation of its
duty and not the acts of the employee would sound as a claim under Section
610. Appellant cannot be dismissed for violation of a Public School
Code section which has no application to his acts. Even assuming
arguendo that Appellant could be held to be an agent for the board in
handling the fund in question, and that he is thus subject to Section
610, it must then be proven that Appellant as agent had notice of the
manner in which the board expected him to manage and use the fund. As
explained below, the board can-offer no such proof.
The district also argued that Appellant violated Section 511 of the
Public School Code, 24 P.S. §5-511: Rules and regulations governing ath-
letics, publications and organizations. Although the district does not
specify how Appellant violated this section or what particular subsection
is involved in the alleged violation, subsection (a) of Section 511 does
authorize a school board to prescribe, adopt and enforce rules and regu-
lations regarding the supervision and financing of school clubs and to
provide for the dismissal of any professional employee who violates such
rules or regulations. The board thus had the authority to issue rules
and regulations governing Appellant's management and use of the Activi-
ties Account General Fund. Under Section 511 the board could also
dismiss any professional employee who violated the rules or regulations
adopted by the board. Commonwealth Court has held that violation of a
school regulation can be a willful and persistent violation of the school
laws within the meaning of Section 1122 of the Public School Code, 24 P.S.
511 -1122, on dismissal. Board of Directors of Ambridge School Directors
v. Snyder, 346 Pa. 103, 29 A.2d 34 (1943).
We presume that the board herein argues that the alleged violation
of Section 511 is a persistent and willful violation of the school laws
and therefore provides grounds to dismiss Appellant pursuant to Section
1122. However, the district superintendent, the Activities Account book-
keeper, the account auditor, and the Appellant all testified on the
record that the district had no written or oral rules or regulations
regarding management and use of the Activities Account. Nonexistent
regulations cannot be school laws. Appellant cannot be held in violation
of a rule or regulation which does not exist. Therefore, we find Appellant
did not violate Section 511 nor can the board dismiss him under Section
1122 for the persistent and willful violation of a school law.
The final argument to be addressed is whether Appellant's conduct,
although not a violation of school law, constitutes immorality, another
valid cause for dismissal enumerated in Section 1122 of the Public
School Code, 24 P.S. §11-1122. Immorality has been defined as "a course
of conduct as offends the morals of the community and is a bad example
to the youth, whose ideals a teacher is supposed to foster and elevate."
Horosko v. Mount Pleasant Township School District, 335 Pa. 369, 6 A.2d
25
866 (1939). The misappropriation of funds has been specifically held to
constitute immorality under the Public School Code as defined in Horosko.
Appeal of Flannery, 406 Pa. 515, 178 A.2d 751 (1962).
The district argues that Appellant used Activities Account General
Fund_ monies to purchase the items in question for his own use and that
he converted school property for his own use. If this contention were
supported by substantial evidence on the record the Secretary would be
compelled-to uphold the district. However, it is the opinion of the
Secretary that the record does not contain substantial evidence as
would allow a reasonable man acting reasonably to reach the same decision
as the board. Penn Delco School District v. Urso, supra.
The testimony cf the district's own witnesses confirmed that in
1976-77, the year in question, Appellant managed the Activities Account
General Fund in the same manner as it had been managed in the preceding
yeare. The district superintendent, auditor and bookkeeper. testified
there were no rules or regulations, oral or written, regarding the
management and use of the General Fund which Appellant could have
violated. With respect to the purchase of the two clock kits, butler
table kit, and stereo the district's witnesses stated that all the
items were delivered to the district, some of the purchases were discussed
with district personnel prior to purchase, and payment was made by checks
which the Activities Account General Fund bookkeeper signed. All the
'items except one of the clock kits were used by the district for d4citrict
purposes. Appellant states that at some time after the purchase of one
clock kit, when it was too late to use the kit as a class project, the
Appellant decided to reimburse the General Fund for, the clock, build the
26 32
kit himself, and order a second kit for a shop class project. There is
no evidence that Appellant did not reimburse the General nd. The
district superintendent; the bookkeeper and the account auditor all
testified that by review of'records it was impossible to determine
precisely what money went in and out of the General Fund. The auditor,
testified there were numerous debits and credits Which he could not
explain by a review of the records and that Appellant could have reim-
bursed the fund.
Considering the testimony of the district's own witnesses, it is
the finding of the Secretary applying the substantial evidence test
set forth in Urso, that a reasonable man acting reasonably could not
decide that Appellant used the General fund to purchase items for his
own use or that he converted school property to his own use. Therefore,
we conclude the charge of immorality ca not support Appellant's dismissal.
Accordingly, we make the following:
ORDER
AND NOW, this day of February, 1980, it is hereby Ordered
and Decreed thatAppellant, William Harr, is reinstated to his position
as a principal in the Carmichaels Aria School District without losS of
pay effective the date of his improper suspension.
Robert G. ScanlonSecretary of Education
3428
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
REBECCA RAYBUCK,Appellant
v.
DUBOIS AREA SCHOOL DISTRICT,Appelle
Sick Leave Appeal No. 22-78
OPINION
The above cited appeal raises one issue: Can a school district
calculate the amount of sick leave earned by a Professional employee by
prorating days earned on the basis of number of months actually worked
in any given school year?
FINDINGS OF FACT
1. Appellant is a professional employee of the DuBois Area School
District.
2. At the end of the 1976-1977 school year, Appellant had accumulated
fourteen (14) sick days.
3. On February 2, 1978 Appellant notified the Superintendent of
the DuBois Area School District that she planned to take leave of her
teaching position beginning February 20, 1978.
29
!35
4. In her February 2, 1978 correspondence Appellant stated that
she wished to utilize her accumulated sick days beginning February 20
until such time as they expired. At the time of expiration she wished
to begin maternity leave.
5. In the 1977-1978 school year, prior to February 20, 1978,
Appellant had used four (4) sick days.
6. Upon receipt of Appellant's letter, the School District calculated
her accumulated sick days by prorating her 1977-1978 entitlement on the
basis of the number of months worked in the school year and thus credited
Appellant with a total of six (6) sick days for the 3977-1978 school
year. The School District then subtracted the four (4) days Appellant
had used (Fact No. 5), added the fourteen (14) days accumulated by the
end of the 1976-1977 school year (Fact No. 2) and credited Appellant
with a total entitlement of sixteen (16) sick days.*
7. Appellant ccntends that she was entitled to a full ten (10)
sick days for the 1977-1978 school year and not a prorated amount based
on number of months worked. Appellant therefore argues her total entitlement
is ten (10) days minus four (4) used in 1977-1978 prior to her leave
(Fact No. 5) added to fourteen (14) previously accumulated (Fact No. 2)
for a total of twenty (20) sick days.
*The Secretary of Education has been notified by Stipulation of bothparties that the dispute over the deduction of a personal day which theDistrict counted as a sick day has been properly settled by arbitrationand is no longer at issue between the parties. The Secretary notes, forfuture reference, that the Department of Education has no jurisdictionunder Section 1154 of the School Code to settle disputes over computationof personal days.
30 3
8. Appellant filed this Appeal with the Secretary of Education
pursuant to Section 11-1154 of the School Code, 24 P.S. 411-1154, on May
4, 1978.
9. The Answer to Appellant's Appeal wa3 filed by the School-:
District with the Secretary of Edpcatior on May 12, 1978.
10. The brief on behalf .of the Appellant was received by the Legal
Division of the Pennsylvania Department of Education oliri JOne 16, 1978,
11. The brief on behalf of the Appellee School District was received
by the Legal Division of the Pennsylvania Department of Education on
June 26, 1978.
12. The-Stipulation of Facts submitted by Appellant and Appellee
was received by the Legal Division of the Pennsylvania Department of
Education on December 29, 1978.
DISCUSSION
The only question raised in this appeal is whether a school district
can calculate the amount of sick leave earned by a professional employee
by prorating days earned on the basis of months actually worked in any
given school year. The answer to this question depends upon an analysis
of Section 1154 of the Public School Code of 1949, Act of March 10,
1949, P.L. 30, as amended, 29 P.S. §11 -1154. Section 1154 provides, in
part, as follows:
31 37
"(a) In any school year whenever a professional or temporaryprofessional employee is prevented by illness or accidentalinjury from following his or her occupation, the school districtshall pay to said employee for each day of absence the fullsalary to which the employee may be 'entitled as if said employeewere actually engaged in the perfo nce of for a period
of ten days. Any such unusec ve shall be emulative from
year to year in the school district of curren employment or
its predecessors without limitation. All or any part of suchaccumulated unused leave may be taken with full pay in any one ,
.or more school years. No employee's salary shpll be paid ifthe accidental injury is incurred while the employee is engagedin remunerative work unrelated to-school duties."
In Official Opinion No. 187 (1959), the Attorney General interpreted
Section 1154 as requiring that each teacher be credited with ten (10)
sick days at the beginning of each school year. Under this interpretation,
a teacher without any accumulated sick leave would be entitled to Len
sick days even if the illness or accidental injury befell the teacher
during the first ten days of the school year.
It is our opinion that when the ten days of sick leave are credited
to an employee at the beginning of the school year, it is understood as
a condition for that sick leave entitlement that the employee work a
normal year of service, if able to do so. In other words,-sta leave
entitlement may be prorated for those who serve only part of a school
year although able to serve the normal year (as in the case of sabbatical
leave). However, sick leave entitlement may not be prorated where a
professional employee starts work at the beginning of a school year and
must withdraw because of illness or accidental injury. Under this
32
interpretation, an employee who cannot complete the school year because
of health is entitled to the ten sick days credited to the employee at
the beginning of the school year.p
In its Answer to the Complaint fhed with the Secretary of Edvation
in this case, the school district claims that it has a long-established
po ).icy of prorating sick days foroprofessinal employees.who work for
only a portion opthe school year Ad that the proration of Appellant's.
sick days was consistent with that policy. As outlined above, the --""
ejelool district may not prorate sick days Iiii-professional employees who
fail to complete a school year because of illness or accidental injury.
IIf the school district is prorating the sick days of professional employees
who cannot complete a school year because of health resons, then its
policy Sfiolates Section 1154 of the Public School Code of 1949, 24 P.S.
§11 -1154.
The only remaining question is whether pregnancy-related disability-,/
should be treated as an ifiness or accidental injury under Section 1154
of the Public School Code of 1949, 24 P.S. 611-1154. In Anderson v. UppeilIeks
County Area Vocational Technical School, 373 A.2d 126 (1977) the court
determined that a school district's refusal. to pay accumulated sick
leave benefits to pregnant teachers constituted an unlawful discriminatory
practice. In reaching this determination, the court stated that "...while
pregnancy may not be illness or accidental injury, it must under Pennsylvania
law be treated as any other physical infirmity." It is our opinion that
33
33
pregnancy aqd childbirth must be treated in the same fashion as other
temporary disabilities. For this reason, a professional employee who
requests a leave for childbirth may not have her sick leave entitlement
prorated by the school district.
The school district, however, contends that the Appellant requested
childrearing as opposed to childbearing leave. We agree with the school
district that a clear distinction exists between childrearing and childbearing
leaves of absence. (See 16 Pa. Code §41.104). The school district,
howevert-is asking the Secretary to presume that Appellant's leave was
not due to a pregnancy-related disability. We will not make such a
presumption without evidence supporting the district's contention that
Appellant was not disabled.
The Appellant Wrote to the Superintendent on February 2, 1978,
stating that she desired to use her earned sick days beginning February
20, 1978 followed by a maternity leave. This request was accompanied by
a note from the Appellant's physician as follows:
The above named patient has been advised to begin her maternityleave on 17 Feb. 78. This will be a temporary disability."
This note indicates that for at least some period of time Appellant's
physician decided Appellant was disabled. This contradicts the school
district's contention that the leave requested by the Appellant which
34
commenced on February 20, 1979 was childrearing leave.
In summary, the Appellant must be credited with the sick days she
earned while on leave due to the temporary disability associated with
pregnancy and childbirth. The school district has not proVed that the
Appellant requested and was permitted to take a leave of absence for
childrearing, as opposed to a leave of absence due to pregnancy -'
related disability and childbearing. Accordingly, we make the following:
And now, this
ORDER
19th day of December, 1979, the DuBois
School District is hereby ordered to,credit the Appellant with 20 days
of sick leave as of February 20, 1978.
Robert G. ScanlonASecretary of Education
35
*.
4 i
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
HOWARD H. MOON,Appellant
v.
BOARD OF SCHOOL DIRECTORSOF THE BETHEL PARK SCHOOLDISTRICT,
Appellee
OPINION
Teacher Tenur_, Appeal No. 28-78
-Howard H. Moon, Appellant herein, has appealed from a decieion of
the Board of School Directors of the Bethel Park School District,
dismissing him from employment by the district as'a result of.the
district's elimination of Dr. Moon's position, Director of Curriculum
and Instruction.
1. Howard H. Moon,
valid letter of
employed by the
and Instruction
2. After two years
FINDINGS OF FACT
Appellant, is a-professional employee, who holdo a
eligibility for superintendent. Dr. Moon was first
Bethel Pa ;k School District as Director of Curriculum
on Janu'ry19, 1976 at a Salary of $28,500.
of continuous employment, Appellant has received
one satisfactory rating, while receiving no unsatisfactory rating.
3. A professional contract was not given to the Appellant after he had
completed his second year of service.
4. The folloOng duties were performed by Dr. Moon in his capacity
as Director of Curriculum and Instruction.
a. Appellant was responsible for Curriculum Instruction, K-12.
b. Appellant was responsible for ratingAirofessional employees
(i.e., subject /rea coordinators and secondary principals).
364 2
c. Appellant developed in-service training programs in the
elementary, middle and secondary schools with regard to
curriculum instruction. Appellant implemented, staffed, and
deviied'the content of these programs.
d. Appellant visited every classroomto'observe the methodology
and level of instruction in the classroom.
e. Appellant supervised the Director of Elementary Education,
who reported to the Appellant.
f. Appellant introduced a program:for gifted and talented children
in the Bethel Park School District. The program was carried
out under Appellant's supervision and direction.
g. Appellant performed all of the functions listed on the job
description of the school district, entitled "Assistant to the
Superintendent for Instruction."
5. On June 19, 1978, the Board of School Directors of Bethel Park
School District eliminated the position of Director of Curriculum
and Instruction, and Appellant's employment was terminated effective
September 1, 1978.
6. Appellant was not provided with notice stating the charges on which
his dismissal was based, nor was a hearing provided before the School
Board.
7. Appe ant-filed-a Petition of Appeal in the Office
of Education on July 18, 1978, stating that "there exists no valid
Causes for the dismissal of the Appellant."
8. A hearing on this Appeal was held before the Secretary of Education
on September 11, 1978.
37 43
DISCUSSION
Appellant contends that his position of Director of Curriculum and
Instruction falls within the category of "supervisor" enumerated in
Section 1101 of the School Code and defined in "Professional Personnel
Certification and Staffing Policy and Guidelines," (CSPG) published by
the Pennsylvania Department of Education (1975). As a "supervisor," he
asserts that he qualifies as a professional employee and is entitled to
the protection of the tenure provisions of the School Code, 24 P.S. §11-
1127. Appellant bases this claim upon his contention that he acted in
the capaciti, of "Supervisor of Curriculum and Instruction" for the
district, as well as being qualified for this position by virtue of his
letter of eligibility for superintendent.
The district contends that the position of Director of Curriculum
and Instruction, as defined by the job description and as performed by
the Appellant, is a non-mandated position not within any category of
Section 1101 of the School Code, 24 P.S. §11-1101. The district reaches
this conclusion because "director" is not a position enumerated in
Section 1101. The district contends that the Appellant is not a profes-
sional employee, has no rights under the Tenure Act, and therefore his
dismissal was legil and proper. The district further contends '1st
since the Appellant is allegedly not a professional employee, he is not
entitled to appeal his dismissal under the provisions of the Teacher
Tenure Act, and the Secretary of Education is without jurisdiction to
decide this appeal.
4438
We find that the Appellant is a professional employee and is entitled
to the protection which the Teacher Tenure Act affords professional
employees.
The fact that the Appellant's title, Director of Curriculum and
Instruction, is not specifically mandated in Section 1101 of the_School
Code is not determinative of professional employee status. The titles
listed in Seccion 1101 for professional employee status are not exclusive
of all others. Charleroi Area School District v. Commonwealth of Penn-
sylvania, Secretary of Education, 18 Pa. Comm. Ct. 121, :A4 A.2d 785
(1975). To determine professional employee status, Charleroi requires
an analysis of the professional titles prescribed by the Department of
Education:
Section 1101 of the School Code, 24 P.S. 511-1101(1) provides:
"The term 'professional employe' shall include those who arecertified as teachers, supervisors, supervising principals,principals, assistant principals, vice-principals, directorsof vocational education, dental hygienists, visiting teachers,home and school visitors., school counselors, child nutritionprogram specialists, school librarians, school secretaries the
selection of whom is on the basis of merit as determined byeligibility lists and school nurses."
Section 2(h) of the Act of August 13, 1963, P.L. 689, 24 P.S.51225(h) (Supp. 1974-75), amending the Act of May 29, 1931,P.L. 210, authorizes the Department of Education to prescribethe professional titles used in the public school system. The
___ regulations of the State Board of Education provide that theDepartment of Education has the responsibility for "designationof professional titles for personnel." 22Pa. Code 549.13(b)(2).
Pursuant to this authority, the Department has designated three profes-
sional titles that would fall within the category of supervisor:: 1)
supervisor of a specific instructional or educational areas 2) sdpervisor
of curriculum and instruction, kindergarten through twelfth grade, and
3) supervisor of pupil personnel services, kindergarten through twelfth
grade.
39
Pursuant to its authority under sections 1201, 1202 and 1203 of the
School Code, 24 P.S. 5512-1201, 12-1202 and 12-1203, as amended, and the
Act of August 13, 1963, P.L. 689, 24 P.S. f1225(b)(c)(h), amending the
Act of May 29, 1931, P.L. 210, the Depertment prescribes the certificates
which qualify the individual to use the supervisory titles described
above.
The department issues several different supervisory certificates
that qualify the holders for either vertical or horizontal (district-
wide) supervision. To be qualified for vertical supervision, the indi-
vidual holds a supervisory certificate in a particular field that qualifies
him or her to supervise only the specific instructional or educational
area in that field. A letter of eligibility for superintendent or
assistant superintendent, an administrative certificate as an assistant
to the superintendent, or a certificate for supervision of curriculum
and instruc,Jn qualifies the holder to be a supervisor of curriculum
and instruction (K-12). All these certificates qualify the holder for
horizontal supervision across instructional or eduCational service
areas.
Appellant holds a valid letter of eligibility for superintendent.
Thus, he is qualified to use the professional title of "supervisor of
.curriculum and instruction." The superVisor in this position is considered
to be a district-wide specialist in curriculum and instruction.
The next relevant inquiry is whether or not he is functioning in
that capacity. CSPG No. 41 sets forth the scope of authorized functions
under the job title of supervisor of curriculum and instruction:
40
The position of supervisor of-curriculum and instruction isthat assignment in which the incumbent employee is considereda districtwide specialist in curriculum and instruction and is
engaged in, responsible for, or performing duties such as:
...Coordination or conduct of instructional supervision
...Design and development of curriculum, learning materialsand innovative educational processes and conduct ofexperimental programs.
...Direction or conduct of basic or applied educationalresearch.
The duties performed by Appellant, which are set forth in Finding of
Fact No. 4, fall squarely within the defined functions. This conclusion
is further strengthened by a letter sent to the Appellant from the
district's superintendent informing the Appellant of his appointment, in
which it was stated that "...you will be eligible for all of the benefits
provided by the District for its administrative and supervisory employees."
(Emphasis supplied.)
An individual who is qualified to be a professional employee and is
functioning as a professional employee is a professional employee.
Assigning that individual a local job title, "director," rather than
"supervisor," does not relieve the board of its duties tm a professional
employee under the School Code. Arose by any other name would smell as
sweet. A ",:upervisor" by any other name is entitled to the same rights.
Likewise, it must be noted that the Appellant was employed by the
district for a period in excess of two years, receiving a satisfactory
rating after his first year, and receiving no rating after his second
year Pursuant to Section 1108 of the School Code, 24 P.S. 111 -1108,
4147
Appellant argues that he was entitled to a regular contract of employment
after his two years of service. Elias v. Board of School Directors, 421
Pa. 260, 218 A.2d 738 (1966); Young v. Littlestown Area School District
24 Pa. Comm. Ct. 621, 358 A.2d 120 (1976). Assuming that Appellant was
a professional employee prior to holding this position, he was entitled
to the contract in January, 1976. One does not need to reacquire tenure
in each category of Section 1101.
Having established the Appellant's professional employee status,
the district's action in dismissing the Appellant must be reviewed. The
position of Director of Curriculum and Instruction was eliminated by the
Board of School Directors, and the Appellant's employment was subsequently
terminated. Appellant was not provided with notice of the reasons for
his dismissal, nor was a hearing provided for before the School Board.
These actions were in violation of Section 1127 of the School Code, 24
P.S. 111-1127, which provides that professional employees are entitled
'to both the aforementioned notice and hearing.
Before any professional employee having attained a status ofpermanent tenure is dismissed by the board of school directors,such board of school directors shall furnish such professionalemployee with a detailed written statement of the charges uponwhich his or her proposed dismissal is based and shall conducta hearing.
We therefore find that Appellant should have been provided with notice
and a hearing prior to his dismissal.
The reason for the Appellant's dismissal, the elimination of the
position of Director of Curriculum and Instruction by the School Board,
is not proper for the termination of the Appellant's employment. In
Charleroi Area School District v. Commonwealth of Education, Secretary
42 48
of Education, 18 Pa. Commw. Ct. 121, 334 A.2d 785 (1975), the district
terminated the position of shool psychologist, and the psychologist was
dismissed. The court held that the employment of a professional employee
may not be terminated simply because the position he or she occupied
was abolished.
The law is clear that if proper proceduresare followed, positions occupied by professionalemployees may be abolished. See Smith v. DarbySchool District, 388 Pa. 301, 130 A.2d 661 (1957).Nevertheless, "terminating" the position does notof itself terminate the professional employee'sappointment. The minimum to which she is entitledis suspension and after the relevant facts have beendetermined, she may have rights that would entitleher to be retained in another capacity.
Id. at 787.
We find that the Bethel Park School District likewise may not
terminate Appellant's employment simply by abolishing the position in
which he was employed. Therefore, we find the district's action also
to be in violation of Section 1122 of the School Code, 24 P.S. §11-1122,
which states the only valid causes for dismissal of a professional
employee.
The only valid causes for termination of a contractheretofore or hereafter entered into with a pro-fessional employee shall be immorality, incompetency,intemperance, cruelty, persistent negligence, mentalderangement, advocation of or participating inun-American or subversive doctrines, persistent andwillful violation of the school laws of this Common-wealth on the part of the professional employee....
There is no provision for the termination of employment which is
predicated upon the elimination of a position within the district
which is occupied by a professional employee.
Accordingly, we make the following:
44
ORDER
AND NOW, this 6th day of November, 1980, it is hereby
ordered and decreed that the appeal of Howard H. Moon be and hereby
is sustained and that the board of school directors of the Bethel
Park School District reinstate him without loss of pay.
45
Robert G. ScanlonEvSecretary of Education
5 1
COMMONWEALTH OF PENNSYLVANIADEPARTMENT OF EDUCATION
JOSEPHFAILENRAYMOND,Appellant
v.
WESTERN WAYNE SCHOOL DISTRICT,Appellee
Teacher Tenure AppealNo. 38-78
OPINION
Joseph Allen Raymond, Appellant herein,. has appealed from .a decision
of the Western Wayne School District dismissing him as a professional
employee on the grounds of immorality.
FINDINGS OF FACT.
1. Appellant, Joseph Allen Raymond, was first employed as a
temporary professional employee for the Western Wayne School District in
September of 1975.
2. Appellant completed two-yeard Of satisfactory service n thejd
school district in June of 1977 thereby.a_taining the status of professional.
employee.
3. On the night of September 25, 1978,, Appellant alleges he
I\par ed his truck to take an evening walk. (N.T. November 30, 57-74).
Appellant further alleges while walking he believed he was being chased
by a bear and attempted to seek aid at a trailer home. He testified
that when the occupants of the trailer detected his presence at their
bedroom lindow Appellant fled. (N.T. November 30, 67-69.)
4. On September 26, 1978, Appellant went to the principal's
office to inform him of the events of the previous evening; Appellant
4652
expressed concern that formal charges would be brought against him.
(N.T. November 30, p. 75-78).
5. On September 26, 1978, Appellant was arrested and charged with
a violation of the Criminal Statutes for looking in the window of a
trailer occupied by other parties. late at night.
6. Appellant and Appellee concur that the Superintendent of
Schools, decided to await the outcome of,the criminal proceedings before
determining whether or not to take disciplinary action against the
Appellant.
7. On October 17, 1978, at a hearing before the district magistrate,
the criminal charges against the Appellant were dropped: A representative
of the Superintendent attended that hearing.
8. On October 181978, Appellant was suspended without pay,
pending a dismissal hearing for charges of immorality,
9. On November 16, 1978, Appellant received a certified letter
from the Superintendent charging him with immorality, specifically with
voyeurism, and notifying the Appellant of the date of his dismissal
hearing:
10. On November 30, 1978 Appellant had a dismissal hearing before
the Board of School Directors of the Western Wayne School District.
11. On December 4, 1978, at a Board of School Director's meeting,
the Board voted to dismiss Appellant on the grounds of immorality.
12. On December 5, 1978, the Board of School Directors notified
Appellant that he had been dismissed fOrimmorality; termination was
effective October 15, 1978.
13. On December 19, 1978, the Secretary of Education received a-
Petition for Appeal on behalf of the Appellant.
47 '53
14.. On February 26, 1979, hearing was held before a hearing
examiner representing the Depart ent of Education.
DISCUSSION
Having reviewed the decision of the BoarcLand,a record of the
hearing before the Board, and havii4 heard argument on behalf of the
Appellant and the school district, 4 is our conclusion that the charges
\
against the Appellant are supported bir substantial evidence. We uphold
the decision of the Board dismissing Joseph Allen Raymond for immorality.
.---ti
Appellant first offers the argum t that the Superintendent's\
decision to await the outcome .of the-criminal proceeding was an assurance
that if the criminal charges were dropp d, no further action would be
taken by the School District. The Secr tary of Education finds that the
Superintendent' c:s decision'to await the \)utcome of the'criminal proceedings
before deciding whether or not to take df.sciplinar action agaivst Mr.
Raymond did not ensure that a dismissaljction would not ensue if the'N
criminal charges against him were dropped.
A criminal conviction need not ocCu to constitute a finding of
immorality within the meaning of Section11122 of the School Code, 24
P.S. 111-1122 nor does'the fact thata criminal charge was made and
subsequently dropped preclude such a determination. The standards for
evidence of culpability and the burden of proof in criminal proceedings
are different than the standards used in civil and/or administrative
proceedings. The fact that the criminal charges against Mr. Raymond may
have been dropped due to lack of suffiCient evidence does not affect the
finding by the Board, in its administrative hearing, that substantial
evidence existed for dismissal of & professional employee on grounds of
48
immorality.
It was within the purview of the Superintendent to send a representativs.
of the school district to the hagistrale",s hearing in order to gain
infokmation necessary" to,determine if tiierevag substantial evidence
,,pertaining "tosthis incident tollsuatein.a petition for didmisse/ of Mr.
Raymond on the grounds of immorality. Thelact that the Magistrate
edismissed,the criminal action did not preclude the Superintendent from
,suspending Mr. Raymond pending a Osmissal'hearing-on a charge of immorality.
The major issue raised by the appellant in,this action-'`concerns4 . .
4f whether or not the single incident which occurred on September 25, 1978/
constituted immorality do as to justify a dismitsal under Section 1122,
1
.--,
Pr
of the School Code. In Borosko v. Mt: Pleasant Township School District,
..2d'866, 868 Cert. -denied; 308 U.S. 553 (1939), the
court defined4.mmorality as:
f
n curse of conduct that offends the mornldof the community and is a bad example tothe youth whose ideals a teacher is supposedto foster and elevate."
- Ale courts have held that a single incident of sufficient severity
. ?supports the dismissal of a professional employee. Landi v. West Chester
;6Area School District, 23 Pa.Commw.Ct. L-86, 353 A.2d 895 (1976). The
fact that thekncident and behavior in question occurred outside the %
;;. _
cladsroomrdoes A6-t preclude the Board .from dismissing Appellant if the
iliacSl1Cn COnauCL COILS L L Li L.
.
, between the;professional employee's immoral behavior and his ability to
teach need be established once a determination cf immorality is reached:
[s]uch a finding is all that is necessary( to deprive a teacher of the privilege of
teaching children on the grounds that hiscoriuct offended the moral standards of
.:ommunity and set a bad example to theyo t :, under his charge.
49 5J
Penn-Delco School District v. Urso, 33 Pa.Commw:Ct. 501, , 382 A.2d
162, 168 (1978). The courts have further stated that a finding of a
school board that a professional employee is guilty of offending moral
standards of the community will not be disturbed on appeal when supported
by substantial evidence. Baker v. School District of the City of Allentown,
29 ga.Commw.Ct. 453, 371 A.2d 1028 (1977).
Appellant contends that the evidence introduced at the hearing was
not substantial and that the decision to dismiss him should be overturned.
The standard used to determine if evidence is sufficient is the substantial
evidence rulecited by the court in Landi v. West Chester Area School
District, 23 Pa.Commw.Ct. 586, 353 A.2d 895, 897 (1976). This
rule:
...should be construed to confer finality uponan administrative decision on the facts when,upon an examination of the entire record, he'evidence, including inferences therefrom, i5found to be such that a reasonable man, actingreasonably, might have reacheta the decision;but, on the other hand, if a reasonableman, acting reasonably, could not havereached the decision from the evidence andits inferences then the decision is notsupported by substantial evfdence and shouldbe set aside. (Citations omitted) (Emphasisin original).
Our careful review of the record, convinces us that a reasonable
man acting reasonably might have reached the declion made by the Board
of School Directors. The evidence, which consisted of lie testimony of
the two occupants in the trailer and the testimony of the Appellant, was
basically undisputed as to the facts involved in this incident. What is
in dispute ".'a the purpose or intent of the Appellant/as he stood on the
cinderblock and looked in the bedr9dm window of the trailer. In determining
which version to accept in a situation where the witness's testimony is
%ft
in conflict with the professional employee's testimony, the court has
held:
that there is sufficient evidence tojustify a school board's decision to dismissa professional employee where the recordshows the board chose to accept the student'sversion...rather than tf.e teacher's version.
Wissahickon School District v. McKown, 42 Pa.Commt.Ct. 169, 400 A.2c
899, 901 (1979). The court in the McKown decision quotes Penn-Delco v. Urso,
33 Pa.Commw.Ct. 501, 511, 382 A.2d 162, 167 (1978) stating that:
the board as the factfinder with respectto these two incidents, and the onlytribunal having the opportunity to hearfirst-hand the testimony of both studentsand Respondent, resolved the issue ofcredibility against the) Respondent.
The Appellant in this case was dismissed for immorality after a
hearing in which his conduct on the night in question was described by
himself and two witnesses. The Secretary recognizes that the case law
is not clear as to whether the Secretary must sustain a dismissal for
immorality if it is supported by substantial evidence based on the
Board's judgment of the credibility of witnesses. In McKown, the court
held that that the Secretary of Education cannot review the Board of
Director's determination of the credibility of the witnesses:
We agree with the Secretary that a carefulreview of all the testimony...could raisequestions,about (a witness's) credibility,even in the Secretary's words, rising tothe level of "reasonable doubt." We donot believe, however, that it was withinthe Secretary's power to substitute herjudgment yegarding the credibility ofthis witness for that of the Board.
McKown, supra, at 900.
Yet, in Grant v. Board of School Directors of the Centennial School
District, 43 Pa.Commw.Ct. 556, 403 A.2d 157, 159 (1979) the court
51 5
stated that:
The provision in sum establishes theSecretary of Education as the ultimatefactfinder in cases of this nature andwith this status goes the power to determinethe credibility of witnesses, the weightof their testimony and the inferences to bedrawn therefrom.
Hence, it is not clear whether the Secretary on appeal must sustain
a dismissal if supported by substantial evidence relying on the Board's
judgment of the credibility of witnesses (Penn-Delco), or become the
ultimate fact finder and judge of credibility, (Grant). However, using
either standard of review, we hold that the determination of the Board
of School Directors in the instant case must stand.
The instant case is controlled by the re",aning articulated in
Penn-Delco and McKown. Although there were no formal findings of fact
by the Board, the directors did vote that the charges and complaints
against Mr. Raymond were sustained and the testimony substantiated them.
Under the McKown standard of review it was within the discretion of the
Board to listen to the testimony and determine if the Appellant, while
allegedly fleing from a bear, stood on a cinderblock and peered in a
bedroom window in an attempt to get assistance and protect himself, or
if he was committing an immoral act by using a cinderblock to gain
elevation to look in the bedroom window of a trailer in order to observe
the occupants engaged in intimate relations.
Under the Penn-Delco scope of review it is also within the discretion
of the Bpard to decide what weight, if any, to grant the testimony of
the five witnesses the Appellant called on his behalf. The testimony of
these witnesses was similar in nature; each person spoke of the Appellant's
good zoral character. In McKown, supra, where fellow teachers testified
52
58ri
that the preparation room in which that appellant allegedly engaged in
immoral acts with a student was frequently used by many persons, thus
making it difficult to consider the room private enough for the alleged
acts, the court found that this testimony "only established that the
room was used daily, but not that it was used at the time the alleged
act occurred." McKown supra, at 901. -Similarly, it was within this
Board's/discretion to decide that the character testimony offered on
behalf of the Appellant merely proved that the five witnesses had never
heard anything immoral or disreputable about Mr. Raymond, rather than to
find this testimony proved him to be innocent of the specific conduct
with which he was charged.
It is apparent in view of the entire record that the Board chose to
believe Scott and Terry Leet, who testified as to Mr. Raymond's immoral
conduct, rather than Mr. Raymond's testimony, or that of his five character
witnesses. Tire Leet's testimony, coupled with Mr. Raymond's inability
to offer a credible explanation for why he was :.tending on a cinderblock
outside the Leets' bedroom window, constituted substantial evidence.
Even if the standard of review articulated by the Commonwealth
Court in Grant, supra, is to be used, in light of a review of the entire
transcript of the proceedings, the Secretary of Education must agree
with the Board that the testimony of the Leets is more credible than Mr.
Raymond's explanation. His assertion that he picked up a cinderblock
and walked back around the trailer in order to stand on the block and
ask assistance from the occupants inside to defend himself from a bear
chasing him is difficult to believe. Given the two eyewitness accounts
of Mr. Raymond's conduct from persons with no apparent reason to fabricate,
the weight of credible testimony supports Mr. Raymond's dismissal for
immorality.
Accordingly, we make the following:
53
513
AND NOW, this 30th
ORDER
day of Septembera980 it is hereby ordered
and decreed that the appeal of Joseph Allen Raymond of the Western Wayne
School District, Wayne County, Pennsylvania is hereby dismissed.
ECG, L.-.Robert G. ScanlonSecretary of Education
5/:
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
BARBARA C. BECK,Appellant
Teacher Tenure Appealv. No. 39-78
YORK CITY SCHOOL DISTRICT,Appellee
OPINION
Barbara C. Beck, Appellant herein, has appealed the November 1, 1978
action of the York City School District dismissing her as a professional
employee. For reasons stated below the above-referenced appeal is
dismissed.
FINDINGS OF FACTS
1. Barbara C. Beck, Appellant herein, is a professional employee who
was employed by the York City School District at the time of the
actions herein contested. (Appellant's Petition, Paragraph #2,
hereinafter referred to A.P. #)
2. On November 1, 1978 the York City School District voted to dismiss
Appellant. (A.P. #17)
3. On December 2, 1978 the petitioner received notice of the decision
of the school district by certified mail. (A.P. #19)
4. On December 29, 1978, on appeal was filed with the Office of the
Secretary of Education pursuant to Section 1131 of the Public School
Code, 24 P.S. §11-1131.
5. By letter dated January 11, 1979, the Appellant's counsel, Thomas W.
Scott, requested a continuance of a hearing scheduled before the
Secretary of Education in Appellant's appeal pending resolution of a
55 Gi
grievance process which had been instituted by Appellant regarding
the same facts at issue in this appeal.
6. The School District of the City of York requested that the
continuance not be granted.
7. The Secretary of Education granted the continuance requested by
Appellant noting that action would not be taken by the Secretary
pending the action taken before the PLRB.
8. Having had no contact from the attorney for either party, Linda J.
Wells, Counsel for the Secretary of Education, contacted Thomas
Scott on January 2, 1980 regarding the appeal in question.
9. In response to the conversation noted in Finding of Fact No. 8
above, Mr. Scott, by letter dated March 18, 1980, wrote to the
Pennsylvania Labor Relations Board requesting an expeditious
decision in the case pending before them in this matter.
10. On October 21, 1980, Pennsylvania Labor Relations Board issued a
final order in the matter of PLRB v. School District of the City of
York (Barbara Beck), case No. PERA-C-12, 239-C.
11. Following the final order referenced above, the Secretary of
Education has had no contact from either party regarding the appeal
in question.
DISCUSSION
Section 1131 of the Public School Code gives the Secretary of
Eduction jurisdiction over appeals by professional employees considering
themselves aggrieved by action of the local school district board of
directors. In the instant case, as indicated by the Findings of Fact,
Appellant herein chose to simultaneously pursue a grievance procedure as
well as an appeal to the Secretary of Education. At the request of
56
Appellant, the Secretary of Education granted a continuance pending the
outcome of the action filed before the Public Employees Relation Board.
The decision of the Public Employees Relations Board was reached on
October 21, 1980. Since that time (one year and two months) no action
has been taken by either party to this appeal to pursue the matter filed
herein with the Secretary of Education. The inactionof Appellant is
sufficient cause to dismiss her appeal before the Secretary.
Accordingly, we make the following:
576J
ORDER
AND NOW, this 5th day of February, 1982, it is Ordered and Decreed
that the appeal of Barbara C. Beck be dismissed.
Robert G. ScanlonSecretary of EducationCommonwealth of Pennsylvania
58
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
DAVID M. BENDL,Appellant
v.
BOARD OF SCHOOL DIRECTORSOF THE GREATER LATROBESCHOOL DISTRICT,
Appellee
OPINION
Teacher Tenure Appeal
No. 1-79
David M. Bendl, Appellant herein, has appealed from the decision of
the Greater Latrobe School District dismissing him as a professional
employee on the ground of immorality.
FINDINGS OF FACT
1. The Appellant, David M. Bendl, is a professional employee. As
of the 197778 school year, he had been employed by the Greater Latrobe
School District for a period of five years. He is single and twenty-
seven years old.
2. During the 1977-78 school year Appellant was employed as a
seventh grade social studies teacher at the Greater Latrobe Area School
District Middle School which houses the sixth and seventh grades, With
students who are generally twelve and thirteen years old.
3. During the 1977-78 school year, Felicia C. was a seventh grade
student at the Middle School. She was twelve years old during mostof
the school year, becoming thirteen on April 10, 1978. Although Felicia
had classes in the Middle School building in which Appellant taught, she
was tic a student in any of his classes.
59 65
4. In late October 1977, Felicia C. was assigned to a detention
room for one hour a day for three consecutive dayi. Appellant was the
assigned teacher in charge of the detention room.
5. Durfng the period of detention,. conversation occurred between--)
the Appellant and Felicia C. The Appellant asked Felicia to-join the
color guard, an activity for which he was the faculty sponsor. :he
Appellant later informed the School Administration that he believed
Felicia was an attractive girl and that, "I caught her eye and she
caught mine" at the time of the dr ltion. There was, however, no
"catching of eyes" as far as Felicia was concerned.
6. On two occasions, one during the crlversation regarding the
color guard and the other immediately following one of the dL ,mtion
periods, the Appellant asked Felicia to call him. He told the Administration,
"I knew she liked me and I did ask her to call me."
7. In November 1977, approximately two weeks after the detention
periods, at the eud of a school day Felicia C. got off of the school bus
at the bus stop near her home. In the driveway of her house she saw an
unfamiliar automobile which pulled out of the driveway, drove down to
where she was walking, and stopped ne: to her. Felicia recognized the
driver to be the Appellant, whom she had never seen in the area before.
The Appellant engaged her in brief conversation and asked her where she
lived. The conversation lasted about three minutes and ended when
Flicia's younger brother approached the car. The Appellant said goodbye,
drove off, and Felicia ran into her house to tell her mother what had
happened.'
8. At the time of this incident the Appellant lived in tclwn four
blocks from the Middle School. Felicia's home was in a town approximately
60 66'
five miles from the Middle School. There was no purpose connected with
the Appellant's professional teaching duties which required him to be in
Felicia's driveway or at her bus stop, nor had he ever before talked at
a bus stop with other children in Felicia's general age group.
9. On November 21, 1977, Stephen Bair, a guidance counselor at
the Middle Schooi, received a complaint from Felicia's parents regarding
the driveway and bus stop in Ident. He reported the matter to C. Richard
Nichols who was then principal at the Middle School.
10. On November 23, 1977, a meeting was held between Mr. Nichols
and the Appellant. The Appellant was made aware that Felicia's parents
were upset over the incident. Mr. Nichols instructed the Appellant not
to drive to Felicia's home, never to bother her or speak to her again,
and that should a similiar incident reoccur he would refer the matter to
the Board of School Directcs. The Appellant offered no ex?lanation for
going to Felicia's home other than that he had wanted to sp-A to her.
He agreed not to talk to Felicia, not to go near her home, and to stay
away from her: -
11. Despite his agreement and understanding with the School
Administration, the Appellant initiated and carried on more than a dozen
conversations with Felicia beginning in March 1978. The conversations
became regular, occurring near the Appellant's assigned classroom or in
the stairwell adjacent to his room and generally when no one else was
nearby. The Appellant usually entered the stairwell after Felicia was
already there. Felicia did not initiate or encourage the Appellant to
initiateth
se conversations.
12. During one of the conversations the Appellant maid to Felicia:
"Do you know if I get caught talking to you I'd lose my job?"
61 01
13. In late March 1978, the Appellant followed Felicia up the
steps in the stairwc...a and spoke with her privately, remarking that she
was the sexiest girl in the school.
14. The Appellant'd recollection of the conversation is that he
said, "I think you're the sexiest -irl I have ever met."
15. Felicia's recollection of this conversation was that the
Appellant told her she was I'the prettiest and sexiest girl in the school,
and someday it might get to be more than that" and that "he had hoped
that it would be more than that."
16. The recollection of Thomas Kissell, Superintendent of Schools,
and of Mr. Ernest Covert, Principal of the Middle School, is that the
Appellant stsil to them in a meeting of April 7, 1978, that he said to
Felicia "I want you to know that you're the sexiest girl I ever met., I
mean this as a compliment now, and I hope that someday we could be more
than just friends." "I knew the girl liked me. I wanted her to know
that I liked her, and sometime down the way, five years from now, maybe
something would work out. These are the kinds of things that I'd like
to talk to her about, not necessarily sex at this time, but perhaps in
the future."
17. Sometime between the end of March and April 3, 1978, the
Appellant again followed Felicia into the stairwell and engaged her in
another_ private conversation. He told her, "I love you and I do not
know what to do about it." kt the April 7, 1978 meeting with Mr. Kissell
and Mr. Covert the Appellant admitted making the remarks to Felicia.
18. The Appellant's remarks to Felicia throughout late March and
early April 1978 were made seriously ratl,( than. in a joking or kidding
manner. Felicia recalls that he spoke slowly and that he looked and
acted seriously when he spoke to her.
62
63
19. As a result of the Appellant's remarks to her, Felicia became
P;)
scaredle She felt the Appellant's behavior was "weird" and a strange wayON
for a eacher to behave. She went home and told her mother.
20. Shortly thereafter Felicia had a dream or nightmare in which
-,he was being chased by the Appellant. She was extremely upset and
_raid to go to school because she did not know what the Appellant was
going to do.
21. On April 4, 1978, a student in one of the Appellant's classes
asked him if it was true that he liked Felicia C. The Appellant took
the studerlt into the hallway and interrogated him about the origin of
the taunt. When the student informed him that two girls had told him
that the Appei_nt liked Felicia,the Appellant talked to the girls and
told them that he considered Felicia just a friend. On April 5, 1978,
the Appellant was again taunted by one of his stAents about liking or
loving Felicia.
22. On April 6, 1978, because she was upset stout the Appellant's
behavior and at her mother's insistence, Felicia was absent from school.
The Appellant was sufficiently upset about Felicia's one day absence
that he purchased a newspaper to see if she was in the hospital.
'23. On April 6, 1978, the parents of F-Aicia C. called Stephen
Bair, the school counselor. The parents 7egistezed strong complaints
about the,Ap 1 llant's conduct during Lhe prior 'seek, including his
profession of 1 ve to their daughter. They demanded a meeting with the
Supei _Iteannt in light ofthe.events of ttlz prior fall, the complaint
they had lodged with the school personnel, and the warning which had
been given the Apollant. The Superintendent held a conference with the
parents the o.exr c: a, April 7, 1978.
24. On April 7, 197-:, .iuperintendent Kissell and Principal Covert
also met with the AppLilant. At thct meeting he admitted making mrny of
the reLarks to Felicia C. which had been aLtributed to him. (See Findings
of Fact Nos. 6, 13, 14) Regarding hi!:; agreement with the School Administration
the prior fall, the Appellant said ". WAS not supposed to talk to
her, but although I was not supplarA I w.:.,ted to talk to her."
25. On April 10, 1978, the Apv...;r, again net with the Sup-::e mtctur7A..
Appellant gave Mr. Kissell a handwr evaluation or charter arslysis'
in which he described hiMself as a wiet sorce-Azz: wieldrawn,
insecure, nc_ self-confident, len2ly at cimep, and unst:zicified vith self
to the point of depression. He described how this affected hill at
school as "unsazisfi:edwith lessons" and "not sure of my abilities."
The Appellant stated that he "sought special relationship with Felicia."
On a second sheet, the Appellant wrote serious questions with which he
0was groping:
"WhaL have I done to Felicia?"
"What have I done to my family?"
"What have I done to this school?"
"Have 1 ruined my life?"
"Will anyone believe that I was not after sex?"
26. On April 20, 197b, the Board of School Directors of the Greater
Latrobe School District sent a Statement of Charges and Notice of Hearing
to the Appellant.
27. A dismissal hearing was conducted by the Boas_ on May 17, June
12, August 28, and August 29, 1978. On January 24, 1979, both sides
were given an -pportunity to submit findings of fact and to offer oral
argument to the Board.
28. On January 31, 1979, the Board voted unanimously to dismiss
the Appellant on the grol. :.c cf immorality. The Appellant received
written notice of the dismissal on February 2, 1979.
64 ti
29. On February 6, 1979, the Appellant filed an Appeal from his
dismi,vsal with the Secretary of Education..
30. A hearing on the Appeal was held on March 21, 1979.
DISCUSSION
The Appellant's contract was terminated on grounds of immorality as
set forth in Section 1122 of the Public School Code of 1949, Act of
March 10, 1949, P.L. 30, as amended, 24 P.S. Ill-1122. Having reviewed
the entire record, we conclude that the charge is supported by substantial
evidence and that the procedural requirements of Lhe School Code. or the
dismissal of a professional employee have been satisfied. Accordingly,
wt must dismiss the Appeal and uphold the School Board's action dismissing
the Appellant.
immDrality, as the term is useC in Section 1122 of the School Code,
was judicially defined by the Supreme Court of Pennsylvania as "a course
of conduct as offends the morals of the community and is a bad example
to the youth whose ideals a teacher is supposed to foster and elevate."
Horosko v. Mount Pleasant Townsh'p School District, 335 Pa. 369, 372,
6 A.2d 866, 868 (1939). See 1so A, peal of Flannery., 406 Pa. 515, 178
A.2d 751 (1964. The Court in Horosko stated that to be considered
immoral conduct need not pertain exclusiv f to sexual misconduct but
may constitute social misconduct of almost any nature. The teacher
dismissed in Horosko was married to the proprietor of a restaurant in
which beer was sold and a pinball and slot machine were mair-ained. The
teacher tenr1.-d bar and gambled with customers iu the presence of school
children who were pupils she tutored. Her dismissal for immorality was
upheld by the L;arreme Corrt of Pennsylvania.
65
A comprehensive discussion of immorality under the School Code is
provid,,:e Penn-Delco School District v. Thomas Urso, 33 Pa. Commw. Ct.
501, 162 (1978). In that decision, despite warnings by school
e...7._ltrators a teacher had conversations with two female students
during which he offered to spank the students. The students believed
that the offer had st...ual connotations.and, although the teacher denied
any sexual overton=: teacher was dismissed by the Board on, the
ground of.immorality. ':J1 Commonwealth-Court, upholding the Board's
decision, reiterated the definition of immorality in the Horosko decision.
and loctnt on to state that:
niscvssion sexual subjects is a matter of particularsensl,tivity in society in general and when such discussionbecomes a part of a course of conduct by.an individual suchconduct may be perceived by others as either amoral or immoral.When such matters are discussed with school age children,society, and particularly the parents of such children, becomemore acutely concerned-both because such discussions can causepsychological harm and because children may view such conduct
as a desirable example to follow. Where teachers (italics)engage in such discussions with children the problem isexacerbated because a the significant influence teachers'exert over the intdllectual, moral, and psychological development
of children. Where a teacher engages in such discussionsoutside the context of a classroom or'a pedagogical setting, at;chool board, viewing these actions against the moral standardsof the community, might will conclude that such conductexceeds the bounds of propriety and fails to give students theproper guidance as to morals and standards of conduct whichteac:,:rs should foster and encourage in their students. Sucha finding is all that is necessary to deprive a teacher of thepriVilege of teachinL children on the grounds that his conductoffended the moral standards of the community and set a badexample to the youth under Iris charge. Urso, supra at 167,
168.
Over the years many circumstances (lave been judicially determined
to constitute immorality under the School Code. See cases such as
Batrus' Appeal, 148 'a. Super. Ct. 587, 26 A.2d 121 (1942) (a teacher
made false statements on a malt liquor license application to the Liquor
Control Board); Flannery Appeal, 406 Pa. 515, 178 A.2d 751 (19t..
66.
teacher misappropriated school funds which he administered); Baker v. School
District of Allentown, 29 Pa. Commw. Ct. 453, 371 A.2d 1028 (1977) (a
teacher entered a plea of nolo contendere to a federal gambling charge);
Bovino v. Indiana Area School District, 32 Pa. Commw. Ct. 105, 377 A.2d
1284 (1977) (a teacher called a student a slut and a prostitute).
Recently ae Secretary of Education has upheld dismissals on grounds of
:,..11=Qrality in Appeal of Gianciacomo, Teacher Tenure Appeal No. 304
1;977) (a teachet emp":.o-3 and then assaulted minors at his bar) and
=1...pf Cann Teacher Tem.: Appeal No. 24-77 (1977) (an industrial
arts r6,-:hec kAseJ protaniy to some of his students).
In light of our cilau .L..ion of the foregoing cases as well as the
standard of review and quantity of evidencediscussed below, we find
that the Appellant's behavior constitutes immorality under she School
Code as judicially defined and interpreted.
The standard of review in cases involving a charge of immorality
has been most recently and comprehensively stated by the Commonwealth
Court in Penn-Delco v. Urso, supra. In that decision the Court stated:
A finding of the school board that a professional employee asguilty of offending the moral standards of he community byhis actions ill not be disturbed on appeal Then supported bysubstantial evidence. Baker v. School of City ofAllentown, 29 Pa. Commw. Ct. 453, 371 A.2d 10' ") (1977). Suchsubstantial evidence necessary to justity dismissal is d_;-erninedby whether a reasonable man acting reasonably might havereached the same decision reached by the Bocr:. Tandiv. West Chester Area School District, 23 Pt, Commw. Ct. 586,353 A.2d 895'(1976), Id. at 167.
It is apparent in view of the entire record that the Board chose to
accept the testimony of the School Diatrices witnesses, including
Fell-ia, as to the substance and the meaning of what was said by the
Appellant. Appellant disputes the interpretation given some of his
67 J
statements, however, we note that Appellant does not dispute the substance
of many of the statements nor does he dispute the testimony regarding
actions attributed to him.
We must affirm the Board's findings "unless constitutional rights
were violated, there was an abuse of discretion, an error of law was
cowmirred, or a necessary finding of fact is unsupported by substantial
evidence." Steffen v. Board of Directors of South Middletown Township
School District, Pa. Commw. Ct. 187, 377 A.2d 1381 (1977); see also
English v. North East Board of Education, 22 Pa. Commw. Ct. 240, 348
A.2d 494 (1975). We find no such violation of ri0ts or error of law
here. Nor can we say the Board lacked sufficient evidence to reach its
conclusion or that a reasonable man acting reasonably could not have
reached tie same decision as the School Board.
he evidence shows that the Appellant, a single, twenty-seven year
old teacher, developed an unusual infatuation with a twelve year old
female student which extended over a period of many months. The Appellant
asked the student to call him, drove to her house for no legitimate
school-related purpose, and sought her out during the school day for
conver_itions in a smi-private stairwell near his classroom. He initiated
and conducted these conversations despite an earlier warning from the
School Administration, his awareness of the parents' concern, and his
understanding of the possible consequences of his persistence. The
final incidents which precipitated the charges involved the Appellant's
statements to the student that he found her sexy and that he loved her
and did not know what to do about it. The record reveals that these
remarks left the student confused and upset by what she perceived as
strange behavior for a teacher. The record discloses no substantial
68
dispute as to the comments made by the Appellant to the student except
as to the context in which they were made and the interpretation they
should be given.
At his hearing, the Appellant stated that he was aware that twelve-
year old students are impressionable and likely to look to teachers for
guidance and, example. He also stated that he had received training and
instructic,n in setting the highest moral example r,r young students. He
testified that the student was infatuated and flirtatious with him--a
conclusion which the Board rejected. Appellant stated that :rider such
circumstances his role as a teacher would require extreme restraint.
However, rather than exercising such restraint and discouraging the
student, informing his superiors, contacting the parents, or taking any
ce!lar appropriate, constructive professional action, the record indicates
that the Appellant, no matter how naive or well intentioned, took measures
which he knew encouraged the situation and provided an unfortunate
example to a twelve year old girl "whose ideals a teacher is supposed to
foster and elevate." Horosko supra at 372.
In Appeal of Carmichael, Teacher Tenure Appeal No. 174 (1968) we
stated:
The dismissal action taken by the Board will no doubt affectthe teacher in securing new employment in his chosen field ofendeavor, but they evidently took into consideration itseffect on the young students who were subected to the Appellant'smisbehavior, and this was entitled to priority.
It is beyond dispute that the teaching profession imposes certain moral
and ethical standards upon those who teach because of the critical
influence the teacher exercises over his students. The courts of this
Commonwealth have on occasion referred to the high standards and expectations
the community imposes on those who teach:
69
It has always been the recognized duty of the teacher toconduct himself in such a way as to command the respect andgood will of the community, though one result of a teacher'svocation may be to deprive him of the same freedom of actionenjoyed by persons in other vocations. Edueexors have always
regarded the example set by the teacher as of great importsneehparticularly in the education of the children in the lowergrades. (emphasis added) Horosko, suora at 371.
A teacher exerts considerable influence in molding the socialand moral outlook of his student by his own precept, deportment,and example. With respect to such moral formation, the roleof the teacher may not be minimized. He is the chief creatorof the student's educational environment and the main sourceof his inspiration. Appeal of Edwards, 57 Luz. L. Reg. 105,112 (1967) quoted in Appeal of Baker, Teacher Tenure AppealNo. 279 (1976).
We cannot find that the Board acted unreasonably in concluding that
the Appellant's words, deportment, and example offended the.community
and set a bad example to the youth whose ideals his behavior should
foster and elevate. Based upon our court's definition of immorality,
our standard of review, and the evidence in the record, we conclude that.
a reasonable man acting reasonably could well have reached the same
decision as that reached by the Board in dismissing the Appellant on
grounds of immorality,
The Appellant also alleges a violation of Section 1130 of the
School Code which provides that a decision of a school board discharging
a professional employee shall be rendered in writing to the employee
within ten days of the conclusion of the hearing. In this case testimony
was concluded on August 29, 1978, but Ties not transcribed, and therefore
unavailable for review, until late October, 1978. On January 24, 1979,
the Board convened to izar final oral argument and to receive requested
findings of fact and conclusions of law based upon the record. On
January 31, 1979, the Boa-d voted to dismiss the Appellant.
-10
70
There is an indication in the record that the Appellant may have
stipulated with the Appellee that Section 1130 of the School Code is not
mandatory, and, in addition, that the Appellant waived Section 1130 of
the School Code. However, we need not decide whether this occurred to
dispose of this issue. We have held that the hearing process is concluded .
when a decision is voted by the Board. Appeal of Goble, Teacher Tenure
Appeal No. V")-76 (1979); Appeal of Brown, Teacher Tenure Appeal No. 267
(1976). Wi do not endorse a delay of five months between the conclusion
of actual testimony and the Board's vote. Here, however, there appears
to be some justification for part of the delay. Notes of testimony were
not transcribed until two months after the conclusion of the testimony.
Thereafter, time was required for each side to review the record thoroughly
in order to prepare comprehensive briefs, including proposed findings of
fact, and to prepare final argument to the F-ard. The Board voted its
decision, thereby concluding the hearing process, on January 31, 1979
and notice was sent to the Appellant on February 2, 1979. It is clear
that the Board, therefore, complied with Section 1130. Even 1--.;:re this
not the case, we have held than the provision requiring that notice be
sent within ten days is directory and that failure to do so does not
compel the reinstatement of a professional employee. Appeal of Gobla,
supra.; Appeal of Mitchell, Teacher Tenure Appeal No. 28-77 (1977).
Accordingly _we make the following:
OkDER
AND NOW, this 25 day of July 1979, it is hereby Ordered and Decreed
that the decision of the Board of School Directors of the Greater Latrobe
School District dismissing David M. Bendl be and is hereby sustained.
L 7 ;1
71
Robert G. ScanlonSecretary of Education
COMMONWEALTH OF PENNSYLVANIADEPARTMENT OF EDUCATION
DOUGLAS A. BEHN,Appellant
v.
BOARD OF SCHOOL DIRECTORS,iethel Park School District,
Appellee
OPINION
Teacher Tenure appealNo. 2-79
Douglas A. Behn, Appellant herein, appeals from the action of the
Board of School Directors of the Bethel Park School District, dismissing
him as a professional employee on the grounds of persistent negligence
and persistent and willful violation of the school laws.
FINDINGS OF 17,L,CT
1. Appellant is a professional employee under Section 1101(1) the
Public School Code, Act of March 10, 1949, P.L. 30, as amended (24 P.S.
Ill-1101(1)) (hereinafter the School Code). He entered into a professional
employee contract with the Bethel Park School District on June 28, 1971.
He taught continuously in that school district since the opening of the
1969-70 school term, first as a temporary professional employee and,
beginning with the 1971-72 school year, as a professional-employee.
taught initLally at the Bethel Park Senior High School and later at the
Park Avenue School (ninth grade) beginning with the 1975-76 school year
and continuing until the date of his dismissal.
72
2. By a letter dated January 8, 1979, from Frank R. LaValle,
Board secretary and director of business affairs of the Bethel Park
School District, Appellant was notified that he was charged with per-
sistent negligence and persistent and willful violation of the school
laws for nine unautho-izec and -unexcused absences; failure to prepare
an use proper lesson plans; and repeated attempts to excuse unauthorized
and unreported absences with uncorroborated and false Information. By
that letter, Appellant was informed that the Board had scheduled a hearing
on the dismissal charges for January 18, 1979.
3. At the tia.e, aate and place specified in the notice of htar-
ing, five members of the nine member Board of the Bethel Park School
District heard testimony given before an attorney who was appointed
hearing examiner. At the hearing, another attorney represented the
school district and Appellant was represented by his own counsel.
4. On February 5, 1979, at a special meeting of the Board, upon
a roll call vote of the seven members present, the following resolution
Was unanimously adopted:
That based upon the evidence presen;ed at the formalhearing on January 18, 1979, it has been determinedthat Douglas A. Behn is guilty rf persistent negligenceand persistent and wi ful violation of the school lawsof the Commonwealth of Pennsylvania, and is thereforedismissed from his position as a professional employeefor the Bethel Park School District pursuant to Section1122 of the Public School Code of 1949, as amended.
The seven members of the Board voting in favor of the resolution included
four members of the Board who were present at the hearing on January 18,
1979.
5. By a letter dated February 7, 1979, the superintendent of the
Bethel Park School District informed Appellant of his ''ismissal.
6. On February 27, 1979, Appellant filed a Petition of Appeal
with the Secretary of Educatim.4.
7. The Secretary of Education scheduled a hearing for April 23,
1979, which, by agreement of the parties, was continued until April 26,
1979. On that date, counsel for Appellant informed an employee of the
legal division of the Department of Education that Appellant wished to
waive his hearing. Appellant had authorized his counsel to waive
Appellant's right to a.hetv.ing. Counsel for Appellant further informed
the employee counsel for the Appellee also wished its argument
to be submitted on briefs.
The record submitted contains the following facts: Appellant
to report for his duties as a classroom teacher and further failed
to follow the reporting procedures on the following dates:
a. On May 12, 1972 Appellant telephoned the schoil
school at 9:40 A.M. to say that he had overslept and would not
be reporting for duty that day; (E. 5, N.T. 26)*
b. On January 21, 1972, Appellant telephoned the
school at 9:15 A.M. to say that he would not be reporting for
duty that day; (E. 6 and 7, N.T. 27)
c. On February 13, 1975, Appellant failed to report
for duty and, the administration did not become agare of hiso
absence-until 11:00 A.M.; his stated reason fbr this absence was
oversleeping; (E. 8, 9, N.T. 46, 47)
d. On June 13, 1975, Appellant reported for duty
late at 10:05 A.M.; (E. 10, 11, N.T. 47, 48)
e. On October 9, 1975, Appellant telephoned the
school at 8:50 A.M. to say that he was not reporting for duty
that day; (E. 12, 13, N.T. 31, 32)
*"E." indicatesosarit; "N.T." indicates Notes of Testimony)
74 8tj
f. On October 27, 1975, Appellant failed to report
that he would be absent from duty that day. He later explained
that his absence was due to illness. he subsequently promised
to obtain a physician's statement which he never produced. The
Teacher's Procedures Manual dces not require a physician's
statement until after three consecutive dnys of absence.
(E. 14, M.T. 32)
g. On May 28, 1976, Appellant failed to report for
duty and did not make any report of his absent .7 intent to be
absent. In his report of excused absence, he stated that he
had been absent due to illness, but subsequently recanted and
admitted that he had overslept. (E. 16, 17, 18, N.T. 33-36)
h. On September 14, 1977, Appellant called the school
9:00 A.M. to say that he would not be reporting for duty chat day.
(E. 21, N.T. 49)
i. On October 5, 1978, Appellant' failed to report off
and was absent from duty. (E. 24, N.T. 52)
9. Following all the incidents cited in paragraph 8 above,
Appellant was note Adm: listration that his conduct was
in violation of e:. _procedures, adversely affected the
educational program given his students, and was considered of
serious enough magnitude to warrant dismissal proceedings if the
conduct was repeated. Appellant was also given the opportunity
to discuss csol incident with an olministrator. (E. 5, 6, 7, 8, 9,
10, 12, 14, 15, 16, 17, 21, 24)
75
10. Appellant was docked one day's pay for each of his
absences on February 13, 1975, October 27, 1975, May 28, 1976,
September 14, 1977 and one-half day for his tardiness on June
13, 1975 (E. 8, 10, 11, 14, 15, 17, 18, 19, 21).
11. The School District's administrative procedures in effect
during the relevant period sat forth a procedure for reporting
an absence from work whereby the employee was to phone the school
secretary by a designated hour to allow the school sufficient
time to make the necessary arrangements to employ a substitute
teacher. Appellant was aware of the regulation regarding the
reporting procedure for a teacher who would not be available for duty.
The procedure was essentially the same for the high school and for the
Park Avenue School during the period in which Appellant taught in those
buildings. (E. 3, 4)
12. Arpellant mains and used lesson plans for some classes.
The policy at the Bethel Park Senior High School and at th-, 'ark Avenue
Junior High School is that lesson plans are required but do not have to
be submitted to the administration. (N.T. 37,75)
13. Donald Nicoll, the Principal of the Park Avenue School,
observe'd Appellant's geometry clans on February 22, 1978. At the
conference held to discuss that observation, the Principal requested to
see Appellant's lesson plan book and was informed that Mr. Behn did not
have lesson plans. (N.T. 56-57)
14. By memorandum dated March 1, 1978, the Principal nrtified
Appellar*. that his failure to maintain a lesson plan book violated
the procedures manual for teachers. (E. 22)
76 82
DISCUSSION
In his °etition for Appeal and in hfs brief, Appellant zaises two
L. .eJ,%ral issues. First. Appellant contends that the statement of
charges dated Januarl, 8, 1979, was signed by Frank L. LaValle, Board
secretary and dirt_ r of business affe.rs, and not signed by the presi-
dent of the school board am! attested to by the secretary as required
under Section 137? ofithe C.chool Code (24 P.S. 511-1127). The issue,
therefore, is whether the absence of the signature of the president of
the school board constitutes the denial of due process to the extent
that the Secretary of Education should remand the matter for further
proceedings before the school board.
We conclude that ..his defect in following the procedures .-,et forth
undet Section 1127 does not require a remand. In all other respects,
the school board followed the procedures set forth under Section 1127.
There is no showing in the record of any way in which this defect has
prejudiced App(Alan:. He had statutorily adequate notice of the charges
to be heard at hearing. At the hearing, he was presented by his
---
own-counsel, he had sufficient opportunity to offer testimony and to,,,,,
4,
i
cross-examine wktnesses testifying against him. Th4 board retained an
independent hearing officer who prosecuted the case,against Appellant.
The re'ord is absent of any show4.ng of even thesppearance of-----_____
prejudice to Appellant by this omission. A single, technical variation
from Section 1127 of the Gout doed not necessarily constitute reversible
error if there is sufficient compliance at.41 the professional employee is
not prejudiced. Howe v. Board of School Directors of the Riverside
Beaver County School District, Teacher Tenure Appeal No. 296-1976;
77 83
See Appeal of Board of School Directors of Cass Tc,wnship, 151 Pa.
Super. 543, ?.0 A.2d 628 (1943).
Appellant's second procedural issue involvc1 the r:,.quirem,-... under
Section 1129 of the Code that two-thi7ds.of the to:-L1 members of the
Board who have given a full, impartial and unbiased cousir tion of the
record must vote affirmatively for dismissal. That Section provides as
follows:
Vote Required for Dismissals. After fullyhearing the charges or complaints and nearingall ltnesses produced by the board anU thepe: against whom Cie charges are pending,ar _ter full, impartial and unbiased con-s c on thereof, the board of schoold_lecto,,,(4hall by a two - trim'.- vote of all
the member.: ,eof. to be r -ded by rollcall, deteraii ,t whether such , rges or com-plaints have been sustained'and whether thefavidence substantiates such charges andcomplaints, and if so determinLd shall dis-charge such professional employe. If lessthan two-thirds of all of the members of theboard vote in favor of discharge, the pro-fessional employe shall be retained and thecomplaint shall be dismissed.
Five members of the nine member Bethel. Park Board of School Directors
were present at the hearing on January 18, 1979. At ate.....kpecial meeting
of the Board, convened n February 5, 1979, -a roll call of the members
of the Board showed that seven members were present, four of whom had
attended the hearing on Jauary 18, 1979. At that meeting, the following
resolution was introduced, seconded and passed by unanimous vote:
That based upon the evidence presented atthe formal hearing on January 18, 1979, ithas been determined that Douglas A. Behn isguilty of persistent negligence and persis- \
tent and willful violation of the school lawsof the Commonwealth of Pennsylvania, and istherefore dismissed from his position as a pro-fessional employe for the Bethel Park SchoolDistrict pursuant to Section 1122 of thePublic School Code of 2949, as amended.
78 8
The information concerning the names the seven Board members
present at the hearing on Feb -Mary 5, 1979, together with a text of the
resolution, is contained in an affidavit dated May 24, 1979, sworn to by
Frank R. LaValle and offered by the school district solicitor. That
affidavit was made a part of the record.
The Board had nine meml,scrs. A quorum of the Board therefore was
present at the hearing on January 18, 1979, and i. .io- thirds of all the
members or the Board, in .a vote recorded by roll call, affirmativel:
voted to dismiss the appellant. The resolution further recited that the
Board members voting at the meeting on February 5, 1979, who . not
been present at the hearing on January 18, 1979, based their votes "upon
the evidence presented at the formal hearing on 2 ruary 18, 1(39." This
is consistent with Boehr... v. Board of Education of the School District
of Pittsburgh, 30 Pa. Commw. Ct. 468, 373 A.2d 1372 (1977). In that
case, the Court held that a quorum of the schc '1 board shnuld be present
during the taking of''testimony in a dismissal hearing but each board
member does not have to listen to all the testimony to vote.
The board also need not show on the record that all board members
ting constdered'all the evidervie presented. In Board of Public E4cation
of the School DisLiict of Pittsburgh v. Pyle, 37 Pa. Commw. Ct. 386, 390
A.2d 904 (1977), the Court stated:
It was not proved nor can we assume inthese circumstances, that the four boardmembers who did not participate in thedismissal hearing, did not give "full,impartial and unbiased consideration" tothe records produced be_ire the Board.
Moreover, in rl-,e present appeal, counsel for the board requested at the
hearing on January 18, 1979, that the record be kept open until all
79
members of the Board were provided with transcripts of th_ ring.
::o.Ansel for the Bcard also requested that the hearing not e ci!med
concluded until all members of the Board had the opportunity to review
the transcript. The resolution of dismissal itself states that the vote
is based upon a consideration of the record.
In is brief, Appellant contended that since he did not know at the
time how many of the five board members present at the hearing actually
parti,:ipated in the voting at the special meeting, he could be faced
with the situation in which a majority of the members voting for dis-
miSsal were not in attendenec at the he...1.ng itself. Based upon the
affidavit, that was rot the case. Of't,,c lour members who were present
at the c'ermal hearing on January 18, 1979, .71-lo voted a^ the special
meeting on February 5, 1979, each voted for dismissal. fKe therefore
conclude that there is no merit to ellant' argument that Section
1129 of the Code was :iolated by the Board,in its vote for dismissal.
W. find that there are no procedural violations that would be
/grosIds for the remand,of this appeal for a new hearing.
I
Appellant next contends that there is not sufficient evidence in
the record to support the Board's dismissal ,f him for persistent negli-
gence and for persistent and willful violation of the school laws. We
have reviewed the record to determine whether or not there is substantial
II.
evidence on the record to support the Board's judgment. See Landi v. West
Chester Area School District, 23 Pa. Commw. Ct. 586, 353 A.2d 895 (1976);
Caffas v. Board of School Directors of U D er Dau hin Arpa School District,
23 Pa. Commw. Ct., 578, 353 A.2d 898 (1976).
80 8
The Beard charged Appellant with nine incidents of unauthorized
and improperly excused absences over an eight-year period. The
gravamen of this charge was that Appellant simply refused to notify
the administration in a timely fashion when he was goir: -, be absent
from schol pursuant to the administrative procedures in effect at
that time. The procedures that Appellant charged with violating were
instituted so that ;sere was sufficient time to make the necessary
arrangnments employ a substitute teacher.
The Board showed that Appellant had . :21iniStrative procedures
vn nine occasions from May 12, 1971, through October 5, 1978. (Finding
of Fact 8) One occasion occurred on May 12, 1971. and another on July
21, 1972. With rlspcct to two more absences or October 9, 1975, and
October 27, 1975, Appellant told the principal of the Park Avenue Scho-.1
that prescribed medication caused him to oversleep. Appellant further
informed the director of staff relations for the Bethel Park School
District in reference to the absence of October 27, 1975, that he was
under-the care of a physician. The dirz:tor requested a physician's
statement verifying Appellant's excuse, but Appellant never produced
one. Under the Teachers' Procedure Manual, a physician's excuse was
required only 'aft... .:Asence in excess of three days. With respect
to a fifth absence w, Al occurred October 5, 1978, Appellant had properly
reported off on the preceding day but failed to call again about the
absence on October 5. The Appellant violated reporting procedures on
May 28, 1976, and on September 14, 1977. With respect to his absence of
May 28, 1976, Appellant initially reported that he had been absent
because of illness but later recanted and admitted that he had overslept.
81
The Teacher's Procedure Manual in use during the relevant period
provided that if a teacher was ill and had to remain at home, he should
immediately call a district secretary, preferably by 11:00 P.M. the
night before or after 6:30 A.M. and no later than 7:00 A.M. of the day
of the absence in order to allow the school sufficient time to make the
necessary arrangements to employ a substitute teacher. Appellant was
aware of the regulation regarding the reporting procedure for a teacher
who was not available for duty. The procedure was essentially the :tame
for the high school and for.the Far: Avenue School during the period in
which Appellant taught in those buildings.
;
The reguat' in the Teacher's Procedure Manual come 14thin the
scope tern l sch.5o1 law9. Harris v. Secretary of Education, 29
Pa. Commw. tt. 625, 372 A.2d 953 (1977). Violations of these regula-
tions would tpplefore constitute a violation of the school laws. The
critical que4tions are whether those violations were "willful" and
"persistent." Case law provides definitions for these terms.
First, it necessary to answer whether the conduct is "willful."
In Sinton's Case. 151 Pa. Super. 543, 30 A.2d 628 (1943), the court said.
"(W)illful obviously suggests the presence of intention, and at_least
some power -f choic ."
In Johnson v. United School District Jo4 School Board. 201 Pa.
Super. 375, 191 A.2d 897 (1963), a temporary essional employee was
dismissed for a refusal to attend an open house. In Lucciola v. Delaware
Valley School District, 24 Pa. Commw. Ct. 419, 360 A.2d 310 (1976), the
professional employe was dismissed for using personal and.sick leave to
go on a five day skiing vacation with a student. The professional
employee had submitted false reasons for his absences.. In both of
these cases, the courts held that the conduct constituted willful
82
violations of the school Jaws.
The intent in .:Aese cases must be compared with Appellant's beh.avior.
In .11nson-the violation involved stubborn insubordination and arrogant
refusal to comply with an administrative request on the part of the
temporary professional employee. Lucciola involved d..-iberate deceit.
In both cases, the dismissed teacher had exe,lised a strong willfullness
in his or her actions.
E; comparison, in the present appeal, Appellant on most occasions
was not deceitful. ',At candid about his cor exile, with
respect to his absence'on May 28, 1975, h ,:let he had fallen
asleep watchino a movie and had forgotten to :Jet his alarm clock. le
record discloses only one incident in whi a Appellant lied about the
reason fc,r his absenteeism or tardiness but also shows he promptly
recanted and admitted the real reason. Nor was Appellant arrogant. He
admitted several times that he "deserved to be docked.' Accordingly,
Appellant's conduct wis unlike the teaches' conduct in Johnson and
Lucciola. Appellant was not arrogant in his attitude c. contrite; he
was not deceitful but, as the record shows, generall andid.
However, we agree with the Board that Appellant's attitude, reflected
the incidents of tardiness and unexEbsed absenteeism, was careless
and willful. His excuses of ove:-sleeping, watching a late movie, or
failing to set his alarm clock reflect carelessness. At some point
following the series of warn_:-Igs given by the District to Appellant that
his carelessness could lead to his dismissal, Appellant's conduct consti-
tuted a deliberate refusal to heed the warnings of his supervisors. This
deliberate refusal falls within what the court's nave defined as "willful."
Since his conduct as to willfulness has been proven, his acts have also
been proven to be negligent. See Davies v. Bi_g Springs School District,
83 , 8
Teacher Tenure Appeal No. 17-77.
We find that Appellant's conduct was persistent in the sense of
being "continuing" or "zonstant". In Lucciola, the court viewed five
consecutive days as constituting a sufficient series of events to be
persistent. In Johnson, the teacher did not attend a single open
house. However, the court found "persistence' In her announced refusals.
to her superiors that she would not attend open kouse. Following the
1.,gic of Lucciola and Johnson, nine separate failures to inform the
District of absences following eight specific notices to the employee of
his responsitility to report in by a specified time are "persistent."
As stated by Mr. Justice Musmanco,
"No large orvnization can survive withoutorderly procedure and graduation of responsi-bility. Discipline is required not only inthe military. , It is 'indispensable in everyestablishment in civilization if anarchy andcatastrophe are to be avoided. * * *
What would happen to.illorganized societyif government, could close theireyes to directives which control the inter-meshing of the vast mplicated gears ofgovernmental machiner ?" Board of Educationof Philadelphia v. Au 12.:..t, '406a. 229, 250,251, 177 A.2d 809, 819 (1961).
The Appellant closed his eyes to a directive setting up procedur,s, to a
a series of memoranda and to the docking of his salary. The District
was more than fair in its announced warnings and its impositions of
sanctions less than dismissal. To ask anything more from the Board
would render it powerless to enforce directives which were in the best
interests of students and their education.
The burden of proof is on the Board to show that Appellant engaged
in a continuing course of negligent Or willful conduct. Horoskn v. School
District of Mount Pleasant Township, 135 Pa. Super. 102, 4 A.2d 601,
S84
(1930) rev'd on other &rounds, 335 Pa. 369, 6 A.2d 866 cert. denied 308
U.S. 553 (1939). We conclude that there'is substantial evidence in the
record to support the Board's dismissal of Appellant with respect to
his failure to f.)11c,w the reporting procedures regarding his absenteeism-
and tardiness. The Board has not carried its burden of proof with
respect to its allegation that Appellant repeatedly excused his.,absences
from duty with upcorroborated and 'false inferrmatir,a. With respect to
its charge that Appellant failed to maintain lessonsplans, the principal
of the Park Avenue Schocl testified that af:.ar ::observing Appellant's
class on February 22, 1978, her ested Appellant's lesson plan book.
The Appellant told itim that he did h.91.31.ave lesson plans. In his direct
examination during his hearihg before rtqe Beard, Appellant testified
that he prepared lesson plans and used them in his class. Based upon
Appellant's denial of the charge, and considering that his remark to the
principal may have been limited to the particular class being observed,%
wr conclude that there is not substantial .,vidence in the record to
support this charge.
Accordingly, T,7e make the '.olloving:
85
RDERAND NOW, this 12th day of December , 1979, it is hereby
ordered an decreed that the Appeal of Douglas A. B:!ln be and hereby is
dismissed and that the decision of the Board of School Directors cf the
School District of Bethel Park, Pennsylvania, dismissing him as a pro-
fessional employee on the grounds of persistent negligence and persisten
and willful violations of the school laws, be and hereby is affirmed.
86
Robert G. ScanlonSecretary of Education
IN THE OFFICE OF THE SECRETARY OF EDUCATION.N COMMONWEALTH OF PENNSYLVANIA
ALBERT G. BURTON,Appellant
v. Teacher Tenure AppealBOARD OF SCOL DIRECTOR:, No. 3-79OF THE GENERAL BRADDOCKAREA SCHOOL DISTRICT
Appellee
OPINION
Albert G. Burton, Appellant herein, has appealed
from c, decision of the Board of School Directors of/the
General Braddock Area School District reassignillg him to a
new administrative position. Thi.; Appeal is taken ire
accordance with sections 1131 and 1151 of the Public School
Code, Act of March 10, 1949, P.L. 30, art. XI, 5 1131; 24
P.S. f 11-1131 and Act of August 8, 1963, P.L. 564, f 10;
24 P.S. 5 11-1151, as amended (hereinafter the "Public
School Code").a
.FINDIN9S OF FACT
1. Apr-sllant is a professional employee of the
General Braddock Area School District (hereinafter referred
to as the "School District") within the meaning of that term
as defined in the Public School Code.
87 93
2. Appellant holds a Bachelor of Science Degree in
Education, a Masters Degree in Guidi. Ize and Counseling, and a
Masters Degree in Administration.
3. Appellant has work,a'' nor the School District for a
period in excess of thirty-one ye,
4. Appellant has held numerous capacities as an employee
;f the :school District, including that of teacher of Industrial
%Its, Leacher of Mathematics, teacher of Driver Education, Guid-
ance Counselor, Guidance Director, School Psychologist, Super-
visor of Guidance Services and High School Principal.
5. Appellant is certificated as a teacher, principal,
supervisor and superintendent.
6. The School District initiated preparation of a---
long-range plan during 1976 at the direction of the School Board
and the said plan was finally approved by the School Board on
May 18, 1978.
7. The Department of Education approved the School
District's long range plan on October 19, 1978.
88
8. The lon--rangtv, f,Aan provided for a new position
designated as "Curri n Coordirdtor' which was to be an ad-
ministrative position concerned with the strengths, weaknesses,
goals and program requirements of the District among other items.
9. The long-range plan vests responAu'lity for im-
plementation of District-wide education goals in the Curriculum
Coordinator.
10. Immediatel,: prior to August 10, 1978, Arr.cllant held
the position with the SchoOl District of High School Principal.
11. By letter .,Cf August 10, 1978, received by Appellant
on or about August 11,.1978, Appellar. iced by Rocco Stio,
Superintendent of tte School. District, had been reassigned
to a position designated as "Coordinator of Instruction - Grades
Seven through Twelve".1
12. The Board of School Directors of the School r_strict
did not take action approving the change in position of Appellant
prior to August 11, 1978.
1 All parties have previously stipulated that the titles"Coordinator of Instruction" and "Curriculum Coordinator" weresynonymous.
89
13. Appellant did not receive a hearing on the change
of position prior to August 11, 1978.
14. Subsequent to August 11, 1978, Appellant received a
description of the position of "Coordinator of Instruction" which
described the responsibilities and attributes of the position.
15. The description of the position delivered to Appellant
was prepared by Superintendent Stio at Appellant's request.
16. Appellant's salary and compensation in the new
position were designated initially as negotiable but were not re-
duced from the total package of compensation benefits to which
Appellant was entitled as High School Principal.
17. Pursuant to the organizational chart of the admini:tra-
tion of the School District, Appellant's new position of "Coordinator
of Instruction" was the third ranking position in the School District
below Superintendent and Assistant Superintendent.2
18. Appellant lost no tenure rights via the reassignment.
2 The chart itself appears to list the position as "Directorok Secondary Education".
90 9(3
19. At the time of the reassignment, Appellant was
offered an opportunity to select the title for the new position
as well as to negotiate a salary increase.
20. Appellant has not negotiated any salary increase
with the School District.
21. On or about August 16, 1978, Appellant sought, by
filing a suit in equity in the Court of Common Pleas of Allegheny
County, equitable relief from the reassignment.
22 On or about August 23, 1978, the School District,
by amicable agreement with Appellant, acquiesced in the issuance
of an Order from said Court directing the holding of a hearing
pursuant to section 1151 of the Public School Code of 1949.
23. By agreement of counsel, the hearing pursuant to
section 1151 was convened on August 25, 1978, before the full
membership of the Board of School Directors.
24. At said hearing, the School Board e. 7)loyed the
services of a special counsel.
25. During said hearing, testimony and exhibits were
received by the Board of School Directors relating to the claim
of Appellant that his reassignment in fact constituted a demotion.
91
26. Subsequent to said hearing, the special counsel
retained by the Board of School Directors prepared a document
entitled "Findings of Fact, Conclusions of Law and Decision of
the Board of School Directors" which found that Appellant was in
fact promoted, and not demoted, and sustained the reassignment
of Appellant.
27. The document referenced hereinabove prepared by the
special counsel was distributed to all nine members of the Board
of School Directors.
28. All of said Board of School Directors signe6\said
document prepared by the special counsel, five approving the
findings set forth therein and four disagreeing with the said
findings.
29. At a regular meeting of the Board of School Directors
held January 18, 1979, Appellant's job title was changed to "Super-
visor of Curriculum Coordination of Secondary Education".
30. By letter dated February 27, 1979, and received by
the office of the Secretary of Education on March 1, 1979,
Appellant filed a Petition for Appeal from the said determination
of the majority of the Bcard of School Directors of the School.
District.
92
31. By notice duly filed in conformity with regulations
of the Department of Education, counsel for Appellant signified his
intention to offer testimony of three witnesses who were members
of the School Board at all relevant times at the hearing on
Appellant's case.
32. The hearing of Appellant's case was originally
scheduled for March 27, 1979, but at the request of counsel for
Appellant, said hearing was rescheduled for April 11, 1979.
33. At said hearing on April 11, 1979, Appellant o.,-:fered
the testimony of Elmer Devay and waived testimony from Richard
Aiello and John Kopay.
DISCUSSION
Section 1151 of the Public School Code establishes the
basic considerations which must be made in evaluating claims of
alleged demotions such as exist in the present case. That section,
in pertinent part, provides as follows:
[T]here shall be no demotion of any professionalemploye either in salary or in type of position,except as otherwise provided in this act, with-out the consent of the employe, or, if such consentis not received, then such demotion shall be sub-ject to the right to a hearing before the Board ofSchool Directors . . .
93 L.: J
Arising from this section are certain basic 'rinciples which have
been elucidated by the Courts of the Commonwealth and which provide
to us the guidelines for determination of demotion cases. These
guidelines were set forth in the Opinion of Judge Rogers in Lucostic
v. Brownsville Area School District, 6 Pa. Commonwealth Ct. 587,
590-591, 297 A.2d 516, 518 (1972). In that case, the principles
to be applied in evaluation of demotion cases were listed along with
the authority from which each was drawn:
(1) A Board of School Directors may demotea professional employee in position or salaryor both wit-nut his or her consent (Tassonev. Redstone ,wnship School District, 408 Pa.290, 183 A.2d 536 (1962) );
(2) The action of the Board in such case ispresumptively valid (Hibbs v Arensberg, 276Pa. 24, 119 A. 727 (1923) ); and
(3) The demoted employee contesting the Board'saction has the burden of proving it to bearbitrary, discriminatory or founded uponimproper considerations (Smith v. Darby SchoolDistrict, 388 Pa. 301, 130 A.2d 661 (1957);Lakeland Joint School District v. Gilvary,3 Pa. Commonwealth Ct. 415, 283 A.2d 500 (1971) ).
In Commonwealth of Pennsylvania, Department of Education v. Kauffman,
21 Pa. Commonwealth Ct. 85, 92, 343 Pa. 391 (1975), the Commonwealth
Court cle:rlsrly held that the application of these principles required
the professional employee claiming the existence of a demotion to
bear the burden of proof of the threshold issue that a reassignment
in fact constituted a demotion.
94
In determining the presence or absence of an actual
demotion, the generally cited decision of the Pennsylvania Supreme
Court in Smith v. Darby School District, 388 Pa. 301, 303-4, 130
A.2d. 661, 664 (1957), is particolarly appropriate:
A demotion of a professional employee is a removalfrom one position and an appointment to a lowerposition; it is a reduction in type of position ascompared with other professional employees havingthe same status. . .[citations omitted]
Accord: Commonwealth v. Kauffman, supra, at 92. The Courts,
however, have also been careful to indicate that a demotion may
occur in type of position alone, even though the salary remains theJ.
same. Smith v. Darby School District, supra, at 304.
Application of these authorities requires Appellant in
this case to establish the threshold determination that he has
in fact been demoted as a result of his reassignment from High
School Principal to Supervisor. On careful review of what is
at times a confusing record in this case, we conclude that Appellant
has failed to sustain his burden in this regard.
Appellant's argument supporting his claim that a demotion
in fact occurred at the time of his reassignment is based upon
several contentions. Initially, Appellant claims that his reassign-
ment is a demotion because as a High School Principal he had authority
95
over specific numbers of teachers, administrative personnel,
students and a physical facility in the form of a high school
building. Appellant claims that his reassignment to a new ad-
ministrative position effectively removed this authority. While
we agree that the "factor of command" is one criterion upon which
reassignments may be evaluated as derrotions, we do not believe it
is conclusive in this case. The record includes three documents
which we bel'eve indicate that Appellant received a new form of
m,hority in place of his prior authority. The long-range plan,
the District's organizational chart, and the -iob description for
Appellant's new post all tend to indicate that Appellant in fact
was given autnority for determining various educational program
objectives and educational functions for the entire District at
the secondary level. This new authority is at least arguably
greater than the authority which Appellant relinquished in assuming
his new position. On this basis, we believe that the record con-
firms substantive authority vested in Appellant after the re-
assignment. We find nothing in the record of this case sufficient
to warrant a determination that Appellant lacked substantive
administrative authority subsequent to the reassignment.
Secondly, Appellant argues that the job description
prepared by the Superintendent for Appellant's new position
on its face demonstrates a reduction in Appellant's responsibilities
96
and authority. Appellant's argument in this regard appears
primarily focused upon the utilization by the Superintendent
in the description of terms such as "aid" and "assist." We
believe that this argument lacks substance and is merely
reliance upon semantics. Even a cursory reading of the
twenty-seven individualized functions specified in the job
description leaves the clear impression that Appellant, in
1-is new position, is vested with determination of program
goals and program needs for the District (as opposed, for
example, to a single school). Appellant's new job title,
despite the confusing changes through which it evolved,
clearly includes the word "coordination" which strongly
implies that the new position in fact constitutes a link
between lower administrative personnel and those superior to
Appellant in the District. Consideration of the District's
organizational chart places the Appellant between the
Superintendent and the Assistant Superintendent on one hand
and High School Principals on the other. Thus, logically,
the new position places Appellant in a conduit role designed
to facilitate interaction between principals who are lower
administrative personnel and the Superintendent or Assistant
Superintendent. The record of this case is devoid entirely
of any professional judgment, other than Appellant's own
opinions, which would contradict the documents submitted by
the School District. For that reason, we find that Appellant's
argument in this regard is not sustained nor supported by
the materials now before us.
97
Thirdly, Appellant argues (at times by innuendo) that
the Superintendent of the School District deliberately, and
perhaps maliciously, caused the reassignment of Appellant for
competitive reasons. We reject this argument completely. Unless
supported by factual data which is completely absent in the present
case, we believe that charges of such conduct are inappropriately
raised and should be summarily dismissed in hearings before the
Secretary of Education.
The final challenge mounted by Appellant in support of
his argument that a demotion has occurred focuses on what appears
to be a claim that Appellant has been reassigned to a position
which is not encompassed by the term "professional employee" under
the Public School Code. In this regard, Appellant is arguing that
he is no longer protected by the tenure provisions of the Code.
We acknowledge that the record indicates an unusual degree of
confusion in the establishment of a title for Appellant's new
position. It seems self-obvious to us that administrative re-
assignments can be sufficiently planned in advance to avoid un-
fortunate and haphazard redefinition at the time serious re-
assignments are undertaken. Nonetheless, the record in this case
shows a final determination by the School Board on January 18,
1979, designating the new position as one of "Supervisor", a position
fallinc, within the ambit of section 1101 of the Public School
98
Code. On this basis, the citation by Appellant of such cases
as Fiorenza v. Board of School Directors of the Chichester School
District, 28 Pa. Commonwealth Ct. 134, 367 A.2d. 808 (1977) is
inappropriate. The Fiorenza decision involved an administrative
post which did not fall within the definition of "professional
employee" under section 1101, and further did not involve, as the
instant case does, a situation in which the Appellant was certifi-
cated as a supervisor, the position to which the Appellant had
been reassigned.
On this basis, we conclude that the record before us
indicates that Appellant suffered no reductior in salary, lost
no tenure rights, received new and perhaps superior authority for
that authority which he lost by reassignment, and has failed to
demonstrate any relevant factor supportive of his contention that
he was demoted. As a consequence, we must conclude that no
demotion has been demonstrated. On this basis, it is unnecessary
to reach Appellant's additional arguments.
We do, however, take note in this case of a procedural
matter which is arising with increasing frequency in cases of this
sort. The record of the case appears to indicate a failure by the
School District to accord to a professional employee a procedural
right to a hearing which is mandated by section 1151 of the School
Code. The Pennsylvania Supreme Court in Smith v. Darby School
99
District, supra, at 319, interpreted this section to impose upon
a school board a statutory duty to grant a nearing to a pro-
fessional employee when the employee claims he has been demoted.
School districts may not avoid the hearing requirement by de-
termining initially that demotions did not in fact occur. Needless
wastes of time and expense for all parties can be avoided in the
future if districts will accept this duty without having it imposed
upon them by either this Department or the courts. In the present
case, Appellant was accorded the public hearing required by statute
after submission of the issue to the courts. Although Appellant
maintains that he was denied some form of due process as a result
of the preparation of a document setting forth findings of fact
and conclusions of law by a special counsel to the School Board,
we find that the record of this case establishes without question
consideration by each member of the School Board of the issues
raised at Appellant's hearing. A majority of the School Board found
that no demotion had in fact occurred, and we confirm that finding
herein.
Accordingly, we make the following:
100
ORDER
AND NOW, this 2nd day of July , 1979, it is
hereby Ordered that the decision of the Board of School Directors
of the General Braddock Area School District is affirmed and the
Appeal of Albert G. Burton is accordingly dismissed.
101
Robert G. ScanlonSecretary of Education
It)
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
C. MICHAEL NOBLE,Appellant
v. Teacher Tenure AppealNo. 4-79
LINCOLN INTERMEDIATE UNITNo. 12,
Appellee
OPINION
C. Michael Noble, Appellant herein, has appealed from the decision
of the Lincoln Intermediate Unit No. 12 denying him the status of a
professional employee and the rights and privileges of that status.
FINDINGS OF FACT
1. Appellant is a graduate of Millersville State College and is
permanently certified by the Department of Education in the education of
the emotionally disturbed, elementary guidance and counselling.
2. Prior to his employment by the Lincoln Intermediate Unit
Appellant served as an employee of the Berks Intermediate Unit for four
years. During those four years he was observed, gated satisfactory,
:warded tenure, and achieved the status of professional employee.
3. Appellant resigned his position in the Berks Intermediate Unit
to pursue full-time graduate work in guidance and counselling and
102
successfully completed a Masters program at Shippensburg State College
on August 5, 1977.
4. On July 20, 1977, Appellant made application for a position
with the Lincoln Intermediate Unit. The application indicated by mark
that he was seeking a full-time position.
5. On August 19, 1977, Appellant was interviewed for a position
by Robert L. Lindsey, supervisor of the program for the learning disabled
and brain injured.
6. At the time of Appellant's initial interview, the intermediate
Unit needed to fill four full-time positions because there had been four
resignations.
7. At no time during the initial interview was Appellant advised
chat he was being considered for employment as a substitute.
8. At approximately 5:15 on August 19, 1977 Appellant was contacted
by Mr. Lindsey and advised that he was to be placed in a teaching position
at the Wrightsville Elementary building in the Eastern York School
District, teaching in the program for the brain injured.
9. Appellant accepted the Wrightsville position and reported for
the first in-service day on the following Monday, August 22, 1977.
10. At the conclusion of the in-service program Appellant reported
to his classroom and began his duties.
11. Appellant was assigned to the Wrightsville Elementary School
building, teaching a class of brain injured students which had previously
been taught by Karen Hale, another professional employee of the Lincoln
Intermediate Unit. Karen Hale was not on maternity leave during the
103
1977-78 school year. She was not absent. She was an active employee of
the Intermediate TJnit, teaching in the West York School District.
12. The position Appellant occupied was created as a result of
resignations from the professional staff of the Intermediate Unit.
13. None of the four positions to be filled in August of 1977
involved maternity lealn.
14. During the first days of September, 1977, Appellant was summoned
to Mr. Lindsey's office and advised that he would not be recommended to
the Board as a full-time professional employee but rather as a day-to-
day substitute until such time as Mr. Lindsey had an opportunity to
evaluate his performance.
15. Although there were several "alterations" in Appellant's
status during the year, his responsibilities never changed. From tne
opening of the school year on August 22, 1977 until the conclusion of
the year in June of 1978, Appellant was assigned to and ser,d as the
teacher of brain injured children in the Wrightsville Elementary School
building of the Eastern York School District.
16. The first recorded Board action with regard to Mr. Noble came
on October 4, 1977 whan he was referenced as an addition to the approved
list of substitute teachers.
17. On October 20, 1977, Mr. Lindsey observed Noble in his
classroom. tr. Lindsey indicated that the observation was an informal
one acid no official observation form or rating instrument was utilized.
18. Mr. Lindsey made a recommendation to the Board that Appellant
be hired as a maternity leave substitute for Karen Shettle.
104
19. At the November 1, 1977 meeting of the Board of Directors,
Executive Director Karam nominated Mr. Noble as "a full-time substitute
for the 1971 -78 school year in the brain injured program effective
August 2L, 1977 based on 190 days, at the annual salary of $8,700,
Category D, Step 1." At the same meeting Executive Director Karam
presented 12 other employment recommendations and all 13 recommendations
were adopted by the Beard of Directors.
20. At the November 1, 1977 meeting of the Board of Directors,
Executive Director Karam proposed a change in status of Miss Cheree
Shultz from full-time substitute to that of a teacher in the Brain
Injured Program, effective as of August 22, 1977. Miss Schultz has
previously been hired and had been serving as a maternity leave substitute
for Karen Shettle.
21. On December 7, 1977, Paul M Ricker, Assistant Executive
Director of the Intermediate Unit, forwarded a "employee agreement" dated
August 22, 1977 and signed by the President and Secretary of the Board
to Appellant. The covering letter attached to the "employee agreement"
indicated that it was a temporary professional employee contract and
requested Appellant to execute the agreement and return it to the District.
22. Appellant did not execute the agreement and did not return it
to r..b.z office.
23. The proffered "employee agreement" does not say anything about
substitute or maternity leave employment. The "employee agreement"
provides that it "is subject tc the provisions of the Public School Code
of 1949." The only conditions set forth in the agreement involve maintenance
of appropriate certification, which Appellant held at all times.
105
24. Appellant was never tendered a professional employee contract
in accord with Section 1121 of the School Code, nor was he tendered any
contract other than that requiring he serve as a temporary professional
employee.
25. Appellant did not receive any unsatisfactory ratings during
the 1977-78 school year.
26. Appellant was officially informed by letter dated July 20, 1978
that his assignment had terminated and that he would not be employed on
a full-time basis beyond the end of the 1977-78 school year.
27. Appellant consented to a salary of $8,700 for the 1977-78
school year.
DISCUSSION
paving reviewed the Petition of Appeal, the record of the proceedings
before the Board and the briefs and oral argument submitted by counsel,
it is our conclusion that Appellant is a professional employee and that
the procedural requirements of the School Code for the dismissal of a
professional employee have not been satisfied.
Following are the issues which we recognize for consideration on
appeal:
1. Is it mandatory that the contract of employment between a
teacher and an intermediate unit be in writing as required by Section
1121 of the School Code, 24 P.S. §11-1121, for that teacher to qualify
as a professional employee?
106
2. Are school board minutes regarding professional employee
status or the facts of employment of a teacher determinative of professional
employee status?
3. Does the School Code require that a school board fill permanent
vacancies with permanent employees so long as qualified personnel are
available?
4. Was the position that Appellant filled such a permanent vacancy?
5. Did the performance of the duties of the position which Appellant
occupied result in Appellant attaining the status of a professional
employee?
6. Could A_2.11ant prospectively contract away his rights to
professional emp'--ee status or retrospectively consent to a demotion in
status to substitute employee?
7. Did Appellant consent to a demotion in salary?
Six sections of the School Code are relevant to the present controversy.
Section 1101 of the School Code defines the central terms which the
Board must apply:
(1) The term "professional employe" shall include
those who are certificated as teachers, supervisors,
supervising principals, principals, assistant principals,
vice-principals, directors of vocational education,dental hygienists, visiting teachers, hose and school
visitors, school counselors, child nutrition programspecialists, school librarians, school secretariesthe selection of whom is on the basis of merit as
determined by eligibility lists and school nurses.
(2) The term "substitute" shall mean anyindividual who has been employed to perform the duties
of a regular professional employe during such period
of time as the regular professional employe is absent
on sabbatical leave or for other legal cause authorizedand approved by the board of school directors or toperform the duties of a temporary professional employewho is absent. [Emphasis added.]
107
(3) The term "temporary professional employe"shall mean any individual who has been employed toperform, for a limited time, the duties of a newlycreated position or of a regular professional employewhose services have been terminated by death,resignation, suspension or removal. 24 P.S. §11-1101
Section 1176 of the School Code makes it the duty of the Board of
School Directors to empl,y "the necessary qualified professional employes,
substitutes and temporary professional employes to keep the schools
open." Section 1108 of the School Code provides for the observation and
rating of temporary professional employes and, contingent upon their
satisfactory performance, the elevation of temporary professional employes
to "professional emplo; " status. Section 1108 of the Code provides
that a temporary professional employee, whose work has been found to be
satisfactory during the last four months of the second year of his
service,
"shall thereafter be a 'professionalemploye' within the meaning of this article. .
The employe shall be tendered forthwith aregular contract of employment as provided forprofessional employes. No professional employewho has attained tenure status in any schooldistrict of this Commonwealth shall thereafterbe required to serve as a temporary professionalemploye before being tendered such a contractwhen employed by any other part of the publicschool system of the Commonwealth."24 P.S. §11-1108. (Emphasis added.)
Section 1121 of the School Code sets forth the mandatory, uniform
contract which must be used in all school districts for "each professional
elaploye who has satisfactorily completed two (2) years of service in any
school district of this Commonwealth." The mandatory professional
employee contract provides, among other things that it "shall continue
in force year after year . . . unless terminated by the professional
.-
108
employe by written resignation . . . or by the board of school directors
by official written notice presented to the employee."
Section 963(e) of the School Code provides that all professional
employees of an intermediate unit shall have the same rights of tenure
as similar employees of a school district.
The Board argues initially that Appellant has no right to a hearing
nor any right to continued employment because he had no written contract
in the form mandated by Section 1121 of the School Code. Counsel for
the Appellee cites the case of Gordon v. Board of Directors, 21 Pa.
Commw. Ct, 616, 347 A.2d 347 (1975) in support of this contention. The
Commonwealtn Court in McCoy v. Lincoln Intermediate Unit No. 12, 391
A.2d 1119 (1978) rejected this same argument by this riame Intermediate
Unit stating tha :;ordon is not
. . . determinative of the professional employeestatus of this appellant, for . . . [Gordon wasj
decided under Section 1121 of the Code, which,although it specifically requires contracts ofprofessional employees of school districts to bein writing, does not apply to employees of anintermediate unit. 391 A.2d at 1122
Further, in October of 1978 the Pennsylvania Supreme Court handed
down the decision in Commonwealth Department of Education (Bittner) v.
Jersey Shore Area School District, 481 Pa. 356, 392 A.2d 1331 11978)
[hereinafter Bittnerj. The Supreme Court reversed the Comoro.
Court which had held that, at a minimum, there must be a writ tract
between the teacher claiming professional employee status and t. of
109
hoard. 23 Pa. Comm,:. Ct. o24, 353 A.2d 91 (19i6). The Supreme Court
found that Bittner was a professional employee. Bittner was a certified
reading teacher who was hired through a federally funded reading program.
Th: school board did not issue Bittner a written contract and there were
no school board minutes referencing that Bittner was ever employed by
the school district. Bittner worked as a temporary professional employee
without a contract and without board a;.:proval for two years; then she
was discharged. The Supreme Court rejected the school district's argument
that a written contract of employment approved by the school board was a
necessary prerequisite to professional employee status and reiterated
the conclusion of Mullen v. Board of School Directors of DuBois Area
School District, 43b Pa. 211, 259 A.2d 877 (1969), that "the burden of
complying with the statute rests wli the school board."
Therefore, we conclude that an absence of a formal contract in
accord with .e requisites of Section 1121 of the Code is not determintive
of ssional employee status in this case.
11
Do the Board minutes ootrol the Appellant's --atus? We conclu&
that they do not. The position of the Board is that Appellant was
employed for a term certain, that his employment expired at the end ci
the 1977-78 school year and that re is not entitled to the status of
professional employc. In the present case the Board minutes reflect
not only that the Appellant was employed but also that his status was
that substitute teacher.
There are only three types of school employees: professional,
temporary professionals and substitutes. Section 1108 makes it clear
that once tenure has been secured the teacher can never again be a
temporary professional employee. Since Appellant acquired professional
employee status at the Berks Intermediate Unit, he cannot be a temporary
professional employee. Therefore, a central question in this case is
whether Mr. noble was a professional employee as he claims or a substitute
as the administration contends.
Because professional employee status is central to the tenure
protections of the Public School Code (tenure applies only to professional
employees and not to temporary professiona:s or substitutes), there have
been a number of cases decided in this area. Phillippi v. School District
of Springfield Tp., 28 Pa. Commw. Ct. 185, 367 A.2d 1133 (1977). A reriew
of those cases indicates a decided shift in the emphasis which the
courts place upon the actions of the school board as reflected in hoard
minutes if those minutes do not reflect the factual reality of the
employment situation.
Probably the leading statement of the old and now ,:nacceptable
principle that "the Board minutes always control lac witter what" is
found in Commonwealth ex 7-e l.. Hetrick v. School District of the City of
Sunba, 335 Pa. 6, 6 A.2d 279 (1939). In Hetrick, the Pennsylvania
Supreme Court confirmed the substitute teacher status of an individual
who was elected as a "supply teacher" to complete the term of a professional
employee who resigned during the course of the school year. Rejecting
the supply teacher's claim that she was entitled to be considered as a
professional employee, the court held that the School Board minutes were
controlling and that the evidence presented in the minutes could nct be
"supplemented or enlarged by extraneous evidence or by the actions or
declarations of the officials of the school district." 6 A.2d at 281.
111
In the years since the decision in Hetrick a substantial erosion of
the holding that "the Board minutes control" has occurred. It is clear
that the board minutes regarding the status of an employee wil _ontrol
only if the position into which the employee is actually placed and the
duties requisite to that position correspond with the status of the
employee as -eflected in the board minutes. Where the board minutes
indicate tha the teacher's employment status is something other than
required by the position in which the teacher actually functions, the
board minutes are to be disregarded and the teacher's status is to be
determined solely by an evaluation of the position and function of the
teacher. To hold otherwise would allow school boards to circumvent the
tenure act and its philosophy.
Thirty years after the decision in Hetrick the Pennsylvania Supreme
Ccurt re-examined the significance of school board minutes when considering
the professional employee status of teachers. In Mullen v. Board of
School Directors of DuBois Area School District, 436 Pa. 211, 259 A.2d
877 (1969) the issue concerned the validity of a professional employee's
contract ',:here th,,re was no recorded vote of the board with regard to
that contract. In attempting to deprive Mullen of his professional
employee rights the school board claimed that Mullen's professional
employee contract was "void and unenforceable" because the vote thereon
had never been recorded in the board minutes as required by Sectin 508
of the Schoc_ Code. (24 P.S. §5-508) After determining that the board
had in fact employed Mullen, the Supreme Court held "the requirement of
a formal recorded vote to be directory only, although with the caveat
112
that the proof from which board approval can be inferred must be solid."
Concluding that any other result "would arm every school board in the
Commonwealth with a tool by which they could regularly avoid otherwise
valid contracts", the court stressed the legislative policy of the
tenure act which was designed to "create an atmosphere hospitable to
school teachers." The court continued:
Our teachers ought not have the burden ofbeing required to know a 1 the statutes relative totheir employment. Neither should they have tocarefully examine the minutes of their hiring boardin order to ascertain that each and every requirementwas -implied with. The burden of complying with thestate rests with the schcol board; should they failto conduct their business as required, the conse-quences ought to lie at their door, not at the dc-rof their victims. They must not be permitted toadvantage themselves of their own failures to thedetriment of their employees. 259 A.2d at 880-81
One should note that the Court overruled a long line of cases
dating back to 1913 which had given a strict construction to the board
,Tot( requirement. See foctnote 7 at 259 A.2d 880. The cases overruled
in Mullen are among the cases relied upon by the Supreme Court 30 years
earlier in deciding the Hetrick case.
Although the facts of the Mullen decision are limited to the failure
to record a board vote, the principles set forth in Mullen have been
relied upon to invalidate recorded board actions where the action of the
board is inconsistent with the Public School Code. In Sakai v. School
District of Sto-Rox, 19 Pa. Commw. Ct. 639, 339 A.2d 896 (1975) the
Commonwealth Court, speaking through Judge Wilkinson, invalidated a
school board resolution purporting to elect a professional employee for
a one year period. The Court conferred permanent, tenured, professional
employee states on the teacher. The Sto-Rox School Board had attempted
113
to employ . Sakal as "an assistant elementary school principal for a
period of one year." An assistant elementar: school principal, like a
teacher, is a professional employee position. Mr. Sak=1, like Mr.
Noble, had served for more than two years in a professional employee
position and was therefore tei_fed at the time he was hired
When the Sto-Rox School District atcempted to discharge Mr. Sakal
it did so by resolution, without providing him with a statement of
charges, a hearing or the other procedural requirements afforded tenured
professional employees. It was the Board's position that Mr. Sakal had
been hired on a one year contract, that the terms of the contract had
expired and that the Board was therefore free to dismiss him without
further reasons. In rejecting the school board position, Judge Wilkinson
stated:
If that statement represented the law, ell thatevery school board need to do to emasculate tenure isto pass a resolution hiring a professional employeefor only cne year and then execute the standard formof contract.
Relying specifically upon Mullen the Court held that "board actioh
the mandate of the statute could not be used by the
board to deny an employee is proper rights in accordance with his
contract." 339 A.2d at 898.
The Commonwealth Court's willingness to lock teyond school beard
minutes and executed contracts to ascertain the true facts surrsdnding a
school teacher's employment was further demonstrated in George y.
Commonwealth Department of Education, 14 Pa: Commw. Ct 239, 325 A.2d
819 (1974). Demonstrating that the facts can hurt as well as help a
teacher, the Court found thy_' a school board could nor employ an inexperienced
114
teacher as a profesonal employee prior to the completion c. :he
mandatory two-year emporary professional employee period. The Court
held that the school district did not have authority to waive the two-
year probationary period," and voided the professional employee contract
which had been executed by the board.
In conclusion, therefore, we hold that the mandates of the Public
School Code, not the Board, determine the status of an employee. An
employee's status is determined by analyzing the certification, years of
service, position and function of the employee.
III
As a result of the substantial prorections afforded tenured pro-
fessional employees a school district ma7' be reluctant to confer such
status on a new employee. The viabily of this philosophy was at the
heart- of t'-e Hetrick decision. This philosophy has given way to concerns
over preserving a viable teacher tenure system. We have already observed
in Sakai an= Bittner the erosion of Hetrick.
In our cDinion, Section 1101 of the School Code has been subjected
to sufficier judicial interpretation to determine with certainty that
substitutes cu: only be hired for true substitute positions; all other
positions must be filled by permanent employees who either have or are
in the process of securing tenure (professional employees or temporary
professional employees),
The seminal case analyzing the substitute/permanent question was
Love v. School District of Redstone Township, 375 Pa. 200, 100 A.2d 55
(1953). Love involved a teacher who was employed from September of 1941
115 )' -
through June of 1944 under a contract as a "elementary substitute
teacher." The contract in question specifically provided that "it was
not a tenure contract and terminated at the close of each 3f the school
years for which it was signed." When the teacher .Jas removed from her
position she claimed that she was entitled to professional employee
status, notwithstanding the terms of her written contract. In determining
whether or not Love was a true substitute or a permanent teacher, the
Pennsylvania Supreme Court analyzed the terms of the then applicable
Teacher Tenure Act of 1939, The definitions of the terms "substitute"
and "temporary professiona3 employee" contained in the 1939 Act are
identical to the definitions presently found in Section 1101 of the
Public School Code. The Court stated:
It is clear that the Legislature provided fortwo separate classifications to fill the positions
created by the absence or leave of a professional
employee. If the absence or leave were permanentthen the position was to be filled by a temporaryprofessional employee who later would be elevatedto permanent status if found qualified. The vacancy
which the Legislature intended a temporary pro-fessional employee to occupy is a position to whicha teacher will not return. If there were no vacancyin this sense then this position was to be filled by
a substitute. (Emphasis in original)
Unfortunately for the individual teacher in Love, the definitions
which are presently in existence in Section 1101 of the Public School
Code were arEered as a result of the emergency created by the Second
11 War. The Teacher Tenure Act was amended by the Legislature by the
Act of May 21, 1943, P.L. 273. The term "substitute" was amended by
adding a proviso that a substitute could be employed "during the present
war-time emergency and for a period not longer than one year beyond the
cessation of hostilities, to fill a vacancy until an acceptable qualified
teacher can be obtained." Ruling that this specific exception to the
Tenure Act was appl:catle to the case before it, the court sustainer the
employment of the teacher as a substitute and refused to grant her
professional employee status.
The special war time emergency provisions which created "long term
substitutes" were repealed by the adoption of the Public School Code of
1949. The pre-war definitions of substitute and temporary professional
were re-enacted as Section 1101 of the Public School Code. The test for
determining whether a position may be filled by a substitute or whether
it must be filled by a temporary professional (or a professional)
employee is still valid. If the absence or leave is permanent, i.e. the
teacher formerly in the position will not return to the position, then
the position must be filled by a perr lent employee if qualified personnel
are available. If the absence or leave is temporary, then the position
must be filled by a substitute employee.
It is now clearly established that the time at which the decision
regarding the status of an employee is determined is the time when the
position is created, and not some later date. In Tyrone Area Education
Association v. Tyrone Area School District, 24 Pa. Commw. 'Ct. 483, 356
A.2d 871 (1976), the Commonwealth Court relied upon Love v. Redstone
Township to determine that the school board had correctly hired a "full-
time substitute" teacher for a single school term. In Tyrone a vacancy
was created when a permanent professional employee took an educational
sabbatical leave. The replacement for that sabbatical leave position
was hired as a full-time substitute for the 1974-75 school term.
Subsequent to the employment of the substitute teacher, the permanent
117 12,)
teacher on sabbatical leave elected not to return to the district. The
rpacl-ler rlpimed that this after-the-fact election not to
return automatically converted her into a temporary professional employee
entitled tc, the protection of the School Code. Relying upon Love v.
Redstone Township, the Commonwealth Court disagreed, stating,
"At the time of her election, the vacancywhich she was to occupy was a position to whichthe teacher was to return. This being so, therewas no vacancy which a temporary professionalemployee could fill; consequently, a substitutewas the appropriate classification."356 A.2d at 872.
We conclude that the combined impact of Love v. Redstone Township
and Tyrone is (1) that the position to be filled controls the status of
the employee filling it; and (2) that the determination of the status of
the employee filling the position is to be made at the time the position
is filled and not at some later date.
Iv
There was no conflict in the testimony between C. Michael Noble and
Robert Lindsey the witness for the administration regarding the type of
position which resulted in Mr. Noble's employment. Both men testified
that the position was created as a result of resignations from the
staff. The reference to Mr. Noble as a "maternity leave substitute" is
a fiction: created after his employment and designed to deprive him of
the professional employee status.
On cross-examination Robert Lindsey testified as follows with
regard to the hiring of Mr. Noble:
118
Q. And how many positions were available to be filled?
A. 1 believe it was four.
Q. And which one of those positions involved maternity leave?
A. None of those four.
Q And isn't it a fact that all of those four involved teacherswho had either resigned or moved to an area closer to theirhome or resigned for the purpose of furthering taeir education?
A. Yes.
Q. And isn't it a fact that there was no maternity leave positionavailable in the district on the date of that interview?
Yes.
Therefore, we conclude that the position occupied by the Appellant was a
permanent position which was vacant at the time he was hired..
e have recently recognized the central importance of the position
and itt; :-.770-sibilities and the effect these have on determining the
scatus of the employee who Ils it. In the Appeal of James W. McDonald,
Teacher Tenure Appeal No, 252 (decided on July 14, 1976), the Secretary
of Education affirmed the professional employee status of the Appellant
even though he had been hired under a contract which provided that he
was to ' employed for 202 days "for the remainder of the 19fl-74 school
term." McDonald is particularly instructive in determining the stLnis
of Mr. Noble because McDonald, like Noble, had already earned his
professional employee status by serving as a temporary professional
119
employee satisfactorily for a two year period. Relying on Section 1121
of the School Code, the Secretary of Education stated:
Once a teacher has earned professional employee status,he is a professional employee for. ever after, even thoughhe interrupts his teaching position in one Pennsylvaniaschool district and moves to another Pennsylvania schooldistrict.
The Secretary of Education first determined that the position
filled would carry professional employee status. In McDonald the
position was that of elementary guidance counsellor which cloes have
professional employee status; in the present caoe the position of
teacher is also one which carries professional status.
The Secretary continued:
Since the position is one in which an individual is aprofessional employee, Appellant must be classified as
either "substitute" or "temporary professionalemploye_ if he is to be denied the rights of aprofessional employee.
The Secretary then found that the Appellant could not be a substi as
defined in Section 1101(2) of the School Code because a substitute may
only be employed to perform the duties of a profess'ion,-.1 employee,
"dul:ing the period of time when that individual is absent." The Secretary
found that the position which Mr. McDonald occupied was not created by
an absence but was a vacancy. Relying upon Love v. Redstone Township,
the Secretary ruled that a vacancy may not be occ :pied by a substitute.
Even though the School Board resolution which employed Mr. :';eDonald
stated that he was elected "for the remainder of the 1973-74 school
term" the Secretary found, following the logic of Sakai, that "a school
board cannot emasculate tenure by passing a resolution and altering the
standard form contract to hire the professional employee for a limited
duration." The Secretary concluded:
120
Appellee school district has attempted to create afourth classification of teacher, i.e., professionalemployee hired for a limited period of time to fillthe position vacated by a professional employee. If
this new ciassifitlatioll went peLmiLLed, Lilt AppellehLwould waive his rights under Section 1127 of theSchool. Code . . . in exchange for a contract oflimited duration. Such a waiver violates Section 1121of the School Code.
Finding that the board action was inconsistent with the School Code, the
Secretary determined that 1.-he teacher was entitled to all the rights of
professional employee and ordered his reinstatement without loss of
pay.
We believe McDonald to be detu minative of the case at hand. We
conclude that since:
(1) the position occupied by Appellant was a teaching position and
(2 said position was permanently vacant; and
(3) the Appellant had previcJsly attained tenure; and
(4) the Appellant held the certification appropriate to the position;
that therefore, as soon as Appellant began functioning in the
cIpacit of an employee of the intermediate .nit in the position, he
att,e.ined the status of protessional employee.
VI
The Board L argued that the status of substitute of Appellant is
the :,roduct of a demotic:. to which the *ppellant consemted. We reject.
this argument.
Section 1151 of the Public School Code of 19.:.9, Act of March 10, 1949,
P.L. 30, as amended, 24 P.S. Section 11-1151, specifis the rights of an
employee facing a demotion. That section provides in part!
121
". . . but there shall be no demotion of anyprofessional employee either in salary or in type of
position, except as otherwise provided in this act,without the consent of the employee, or, if suchconsent is not received, then such devotion shall be
subject to the right of a hearing before the boardof school directors and an appeal in the same manneras herein before provided in the case of the dismissal
of a professional employee."
, term "demotion" was defined by the State Supreme Court in the case
of Smith v. Darby School District, 388 Pa. 301, 130 A.2d 661 (1957) at
t,=4;
"A demotion of a professional employee is a removalfrom one position and an appointment to a lowerposition; it is a :eduction in type of position ascompared with other professional employees havingthe same status."
*
". . . a demotion in type of position means something
more than a reduction in salary. To demote is to
reduce to a. lower rank or class and there may be a
demotion in st;,de of position even though the salary
remains the same."
In the present situation Appellant was performing the same functions
throughout his tenure at the Lincoln Intermediate Unit duxing the 1977-78
school year. He filled a single position. Therefore L7e conclude that
Li.,.ere was no demotion nor could there be a demotion. The term demotion
does not include the change in classification of employee status under
Section 1101 of the School Code.
We further conci_'e that the prospective employee cannot contract
away his rights under the tenure act. These rights are granted by
statute and depend upon certification, the functions he performs and the
position he holds. To hold otherwise would undermine the teacher tenure
122
act and induce School Boards to exact a waiver of this sort from any and
all new employees.
VII
id the Appellant accept or consent to a reduction in salary to
peg year? We conclude that the record taken as a whole reflects
substantial evidence that Appellant consented to the pay rate of $8,700
no matter what other higher rate he may have been entitled to (N.T. Bd.,
:;ov. 7, 1978, 38). A professional employee may consent to a specified
salary provided chat it is not below the statutory minimum.
123
ORDER
AND NOW, this 10th day of September , 1979 it is
hereby ordered that the decision of the Board of Directors of the Lincoln
Intermediate Unit No, 12 r:.3 the effect that C. MICHAEL 1:OBLE is not a
professional employee be reversed and that Appellant be reinstated as a
professional employee ;;irhout loss of pay.
Robert G. ScanlonSecretary of Education
124
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF EDUCATION
Harrisburg, Pennsylvania
IN RE:APPEAL OF PATPICIABRUMBAUGH, From ADecision Of The BoardOf Directors Of TheTussey Mountain SchoolDistrict Not To Reinstate :
Her To A Position Pre-viously Held As A One-Year Appointment
OPINION
Appeal No 5 79
Patricia Brumbaugh, Appellant herein, has appealed
from a v, Directors of the Tussev Mountain
School District (hereinafter the "School District") not to re-
instate Appellant to a position previously held by her as a one-
year appointment. This Appeal is taken in accordance with Section
1131 of the Public School Code, Act of March 10, 1949, P.L. 30,
art. XI, $ 1131, as amended; 24 P.S. S 11-1131.
FINDINGS OF FACT
1. Appellant was permanently certified in Pennsylvania
as an elementary school teacher and reading specialist in 1975.
125
2. On September 7, 1977 Appellant requested, in writing,
E one-year leave of absence without pay from the Huntingdon Area
School District, for purposes of educational and personal improve-
ment.
har4. attained the status of a tenured pro-
fessi-Jnal employee a Huntingdon Area School District prior to said
leave requeEt.
On September 12, 1917 the School Board of the School
District hereinafter. the "School Board") approved the hiring of
Appellant for a. one-year position as reading specialist and co-
ordinator for the District's E.S.E.A. Title I Program, subject to
approval of Appellant's request for a one-year leave of absence
froFrl t-he Huntingdon Area School District.
5. Substitute Suberintendent George Clapper and Assistant
Superintendent Wa7.ter Curfman confirmed the School Board's action
hv dated September 13, 1977.
6. Said letter limited the terns of employment to a
one year r,a,r:ding specialist internship for the 1977-78 school year
;193 days) at salary of 11.3,000.
7 On September 19, 1977 the Huntingdon Area School Board
approved Appellant's request for unpaid leave for the 1977-73 school
year, effcti'.7e September 20, 1977.
126
'he School District submitted to Appellant a written
contract specifying the above-mentioned terms, signed and dated
Cotoher 23, 1977 by the SprPtAry of the 5cht._..ol Board
Ap,Dellant did not sign the said contract.
10. Appellant performed duties as a reading specialit
and co-ordinator for the School District for the 1977-78 school
year and received the agreed compensation for her services.
11. At no time dur.:ng the 1977-78 school year did
Appellant resign from her position in the Huntingdon Area School
District.
12. At the conclusion of the 1977-78 school year, Appellant
notified the School Board by letter dated July 10, 1978 of her
intention to remain with the School District in the position of
reading specialist and co-ordinator.
13. On August 2, 1978 the School Board voted not to
retain Appellant in the position previously held by her as a one-
year appointment with the School District.
14. Appellant resumed her former position at the Hunt-
ingdon Area School District, with full tenured status on Sep-
tember 9, 1978, the first day of the 1978-79 school Year.
15. Appellant requested and received a hearing before
the School Board on January 24, 1979. at which she presented her
objections tc the School Board's action not to retain her and
further clairrcd the right to reinstatement under the tenure pro-
visions of the Pennsylvania Public School Code.
16. Subsequently, on February 12, 1979, the School Board
voted not to reinstate Patricia Brumbaugh to her previous position,
which decon is the subject of this Appeal.
DISCUSSION
she question raised in this appeal concerns the right
of Appellant, a tenured professional employee on an approved one-
year leave of absence from one school district, to assert tenure
rights under Section 1108(b) of the Public School ie in a
second scloi district at: the completion of a (he-year appointment
therein. In other words, may a teacher invoke the protections
of tenure in two School distric.ts simultaneously?
128
At outset, it must be rec.,:hized that this is a
unique situation apparently not envisioned by the drafters of the
Public Sch,-ol Code provisions establishing the teacher tenure
system. Section 1108(h) specifically recognizes that a teacher
is entitled -o a permanent position under a continuing contract,
as cu lined in Section 1111, in any school distric-: within the
Commonwealth once that teacher has met the statutory requirements
for tenure. That- paragraph reads, in pertinent partl
No professional employee who has attained tenurestatus in any school district of this Commonwealthshall thereafter be required to serve as a temporaryprofessional employee before being tendered such acontract when employed by any other part of the publicschool system of the Commonwealth,
21 P.S. § 11-1108(b). Section 1108, however, when read in its
entrety, clearly was intended to deal with the process by which
a temporary professional employee att ins tenure status. It does'a
not address the special problem of a;professional employee, al-
ready tenured, who serves in one school district while on a ieave
of absence from another.
In order to resolve the question, then, we must consider
the initial purpose of the tenure provisions of the Public School
Code: . to maintain an adequate and competent teaching staff,
free from political and personal arbitrary interference, whereby
129 I LI' J
capable and competent teachers mic7t feel secure and more efficiently
perform their duty of instruction . . ." Ehret v. Kulpmont
Boro School District, 333 Pa. 518, 524, 5 A.2d 188 (1939). Certainly,
a protected, guaranteed position with one .,:;chool district suf-
ficiently fulfills this purpose. The additional protection of
simultaneous tenure in a second district would be unnecessary. In
the instant case, for example, the Appellant had the security of
continued employment in the Huntingdon Area School District The
leave of ;11)7,ence was approved by the Huntingdon School Board, and
regardless of whether it was considered a sabbatical under Section
1I6 or a leave for professional study under Section 522.1, Hunt-
ingdon was required to reinstate her at the expiration of that
period. 24 P.S. 5 11-1168. In both types of leave, her seniority
rights are explicitly protected. 24 P.S. §S 5-522.1, 11-1170.
Furthermore, any waiver of the requirement to return would be
effective, of course, only at her own instigation. Since she never
resigned her position with Huntingdon, she could return there if
she- so chose. Appellant did, in fact, resume teaching at Hunt-
ingdon, with no loss of seniority or salary, when the School Board
declined to retain her for another year. In this regard, the
tenure system worked precisely as it designed to work.
Not only do we find that Appellant Brumbaugh preserved
her rights at Huntingdon by requesting a leave of absence for one
130 IL :3
year only; we also find that she was fully aware of the limited
nature of her relationship with the School District. The minutes
of the School Board meeting of September 12, 1977, on which she
said she relied for the terms of her employment, stipulated that
it was a one-year position, subject to the approval of her leave
requeSt. This was confirmed by a letter to her from Superintendents
Clapper and Curfman, as well as by the unsigned contract submitted
to her October.
To allow Appellan,- truml-augh t- boctstrap tcrsclf
a permanent position upon completion of this limited one-year
appoptment without terminating her associatior with another school
district would open the wad to "tenure shopping" by teachers among
the various school districts. Such a precedent would operate to
disrupt the stability of the public school system, and would militate
against the smoot' maintenE .e of an adequate teaching staff in
the i;Aividual districts. It would force the school district to
accept a teacher into its permanent employ whom it intended to hire
Er) r the p riod of a leave of absence only. Thus, not only would
'uual tenure" be an unnecessary safeguard for the employee, it would
also interfere with the school board's management and control of
local school policy, a result often recognized by the courts as
not within the original contemplation of the legislature in en-
ac':Iing the .anure provisions in question. Ehret v. Kulpmont Boro
'131
School District, supra; WeIsko v. Foster Townsh:H School District, 383
Pa. 390, 393, 119 A.2d 43 (1956).
Nor wc'.....Ld a finding for Appellee, if limited ' the ''dual
tenure" situation, allow a school district to dircument the tenure
requjrenents, as Appellant contends. It would not permit the denial of
tenure rights by hiring any professional on a one-year basis; it would
only permit the hiring of a professions employee for a limited term in
those cases in which the teacher has retained tenure rights elsewhere.
A finding for Appellee will facilitate another practice
related to sabbatical leave entitlement. In the past the Secretary has
advised school boards that it is permissible for a professional employee
to qualify for a sabbatical leave from one school district and be employed
by another school district. Employment in another school district may
fall within the purpose of either health or study for which an employee
is entitled to a sabbatical leave under Section 1166 of the School. Code.
Professional employees may enrich themselves professionally and benefit
the school district by teaching in another school district with an
entirely different student enrollment and faculty than their own district.
A professional employee may seek restorative experience by requesting a
sabbatical to teach in another school district where tensicps may be
less. Permitting school districts to hire a teacher an sabbatical leave
for a limited duration will permit this practice.
13 :3)
For these reasons, we find for the. llee School District
ax* j hnld that Appellant, a tenured professional employee an a leave of
Absence from L..ne school district, is not entitled to sim.1172-leously
invoke t=ure 1-ights in a second school district.
77:V: WS rake the folIonc:
4 1
,.)
133
ORDER
AND NOW, this 10th day of Septe7_ber , 1979,
it is hereby Ordered that the decision of the Board of Directors
of the Tussey Mountain School District not to reinstate Appellant,
Patricia Brumbaugh, in the position previously held by her on a
one-year appointment is rafirmed and the Appeal of Patricia
Brumbaugh is dismissed.
L-tRobert G. Scanlon
Secretary of Eclucation
134
/14lS,...,rtla I L I V., a 1.- 1 1 S.-/ V /- y ,
DEPARTMENT OF EDUCATION
Marjorie BrennanAppellant
v. : Teacher Tenure Appeal 7-79
Berwick Area School DistrictAppellee
OPINION
Marjore. Brennan, Appellant herein, has appeale-! from the
decision of the Board cf Directors of the Berwick Area School
District, dismissing her as a professional employee on the ground
of persistent and willful violation of the school laws.
FINDINGS OF FACT
1. Appell--,nL, Marjorie Brennan, was hared as a professional
employee f the Berwick Area School District on August 1, 1967.
Exhibit - Professional Employee Contract.
2. Ms. Brennan is certified to teach elementary school:
kindergarten through sixth grade. N.T. 13, 14, 37.
3. Ms. Brennan taught the first grade at the Berwick Area
School District for many years. N.T. 35.
4. The first grade classroom where Ms. Brennan taught was
located on the first floor. N.T. 9, 38.
I
135
5. Beginning the 1978-79 school year, Ms. Brennan was
assigned to teach the sixth crade. N.T. 3, 7, 35.
6. Ms. Brennan expresse'! concern abbut teaching the sixth
grade and indicated that the chLldren were go7ng to suffer. N.T.
12, 37.
7. Ms. Brennan's sixth oracle classroom was located on the
second floor, which effectively meant she had to negotiate two
stories because of the locatlpn of the office and cafeteria. N.T.
9, 38.
8. Although Ms. Brennan expressed to her principal her fear
of falling down the stairs, she had no recollection at her hear-
ing of having complained about difficulty climbing the stairs.
N.T. 9, 38.
9. On October 10, 1978, Ms. Brennan said she wasn't feeling
,4e11 and asked for a substitute for the next day. N.T. 4.
10. Ms. Brennan never returned to her teaching duties.
N.T. 6.
11. On October 18, 1978. Principal Garrison sent Ms. Brennan
a letter instructing her to submit a doc ')r's excuse to the
office of Superintendent: ook, N.T. 5.
136
12. In response, Mr. Cook received a note From Dr. Thomas
E. Patrick which stated in its entirety:
Marjorie has been absent from teaching 10-11-: because ofsevere pain in legs. Going to Geisinger Medical Center toArthritis Clinic 10/26/78.
N . T. 15, Exhibit.
On December 6, 1978, Mr. Cook received a second note
from Dr. Patrick reading:
Margorie is being treated at GMC with reports sent to meDr. Patrick. Diagnosis at GMC is bursitis in left leg. Nextvisit to GMC is to be 12/18/78. She may return to her workas soon as pain is relieved enough to resume full dutiesas teacher.
N.T. 16, Exhibit.
14. Mr. Cook wrote to Ms. Brennan on January 23, 1979, and
February 7, 1979, asking for a doctor's excuse from Geisinger
Medical Center. N.T. 16, Exhibits.
15. In response Mr. Cook received a letter from Dr. Dennis
'forretti of GeiLinger's Rheumatology Clinic, which letter was
incorrectly dated January 5, 1979, but was actually sent February
6, 1979, as stipulated by the parties. N.T. 18, 22.
16. Dr. Torretti's letter states that Ms. Brennan was seen
in the Rheumatology Clinic in October 1978 and once again on Feb-
ruary 5, 1979. Dr. Torretti's diagnosis was that she was "extreme-
137 4
ly overweoht" with "nc'isitle bursits of the r cht knee," also
some osteoarthritis in the right ankle related to an earlier frac-
ture. N.T. 24, Exhibit.
17. Dr. Torrett 's letter contains this conclusion:
I have seer the patient on only these two occasions.. In theinterim she has hen managed t>v her private physician. Heractivities were nc: restricted initially. From a purely medi-cal point of view. I chink she q?,ite able to return towork at this time.. It is conceivable that she might exper-ience continued symptoms unless she s able to lose someweight.
N.T. 18, Exhibit.
18. After receipt this report, Mr. Cook wrote to Ms.
Brennan February 9, 1979, stating:
We have received a letter from Dr. Torretti, of the Geising-er Medical Center Staff, and he feels that you should returnto work. Due to this response from Dr. Torretti, we wouldlike to have a date when you expect to return to work.
N.T. 17, Exhibit.
19. Not having received any response to his letter of Febru-
ary 9, 1979, Mr. Cook wrote to Ms. Brennan again on February
26, 1979, ordering her to report for work on March 1, 1979, or
face dismissal. N.T. 19, 20, Exhibit.
20. Ms. Brennan received all correspon!ience from Mr. Cook
cited above. N.T. 49.
1 '2
21. Ms. firen;-lan'F-- daughter hand carried to Mr. lcsi-rer
from, Ms. Brennan on February 28, 1979, disputing his reading of.
Dr. Torretti's letter and concluding:
notil there is sufficient weight loss and the right ankleis sufficiently healed, it wool: be imoossible for me toscams the pain.
N.T. 20, Exhibit.
22. Ms. Brennan did not report for work on March 1, 1979, or
thereafter. N.T. i9. 49.
23. By letter of (arch 1, 1979, Superinterlcnt Cook notified
Ms. Brennan that her I smissal hearing wa5-, scheduler ror March
3, 1979, sating:
You will be charged with willful violation of the schoollaws of the Commonwealth in that you are illegally absentfrom your position and, by this action, have abandoned yourteaching contract.
N.N.T. 20, Ex :bit.
24. As of Motember 197-, Ms. Brennan had 126 1/2 accumula-
ted sick daYs wh. :n includr the 197r,-79 school year. N.T. 14.
25. From Octr 11, 1_978, through February 28, 1979, Ms.
Brennan received salary in the form of sick days, a total
of 92 days. N.T. i, 22.
1391,)
26. ---,ff-P7.,tvP March -1, 1979, Superintendent Cook suspended
Ms. Brennan w_th ... n v pendind the outcome of her hear_na.
N.T. 22.
27. At. Ms. Brennan's hear is ,o on March 17, ?9, only three
witn.sses testified: Principal Garrison Super--,,tendent Cook and
Ms. Brennan. No physician or psychc.loo'Lst was called to testify
on Ms. Prennan's beha1 1.
28. In addition to physicians' letters ci:)c'ed above,
two others were introduced at the hearing. N.T. 41, 43.
29. Dr. T.C. Corson wrote:
This is to verify that Marjorie Brennan was seen in myoffice on 3/7/79 with symptoms referable to menopause.
N.T. 43, Exhibit,
30. The other .etter, dated March 7, 1979, as from Dr.
Patrick. It states that he saw Ms. Brennan on Oc_ober 20, 1978,
at which time she complained of headache, a left sciatic type
of pain, pains in her riQht ankle, and pain in her legs. He ob-
served her to be upset and nervous, and prescribed a tranquilizer
for her anxiety. Her next pertinent visit was M,,rch 6, 1979, at
which time she was also very nervous, upset, and depr ssed, and
140
complained of term heariaches. There is no mer s of leg or
ankle problems at this visit. The lette :oncludes:
I sincerely believe that because of her somatic complaints,because o,f her emotional problems, her value as a teach-
er at this Immediate time would be questionable. It wouldseem to me that a leave of absence from work is indicatedat this time. This would give her the opportunity to carefor her problems, return a healthier and better adjustedberqon.
H.7. 41, 42, Exhibit.
31. After the close of testimony at the hearing, Ms.
Brih:in's attorney submitted a letter to the School Board and
Mr. Cook .,king for a sabbatical leave of absence for health rea-
sons for the 1979-1980 school year and to consider the remainder
of the 197E-1979 school year as sick leave days. N.T. 2, Exhi-
bit.
32. Ms. Brennan had not previously asked for sabbatical
leave for either the 1978-979 or the 1979-1980 school yea, N.T.
43.
35. Or: March 21, 1979, the Board of Directors of the Berwick
Area Sch,:,o1 District voted to dismiss Ms. Brennan, concluding:
Th the failure of Marjorie Brennan to report to her sixthc e teaching assignment at the Forteenth Street elementarybuilding from March 1, 1979, to March 13, 1979, constitutesa persistent and willful violation of the school laws of
1
141
tr]s ;1-1 that her absences fro-,position duties from .,arch 1, 1979 to rob 17, 1972were at lecal cause and were unexcus
Decision of the Board, Conclusion of Law No. 4.
14. Ms. :.rehnan Filed a t imel moeal with the Secretary
of Education essentially allecinc that the facts did not support
the smissal and that the District acted unlawfully by failing
to respond to her requests of March 13, 19 , for more sick leave
and a sabbatical. Petition of Appeal, Statement of Grounds for
Appeal.
35. As cat of the appeal ..7t!ss, !,1s. Brennm took the
depositions by written interroaatories Gf both Dr. Patrick and
Dr. Torretti.
3E. deposition, Dr. Patrick stated that he is a spe-
cialist IT-, family prart ro and that has examinations of Mrs.
Brennan were primarily inteorocatory. Deposition of Dr. Patrick,
pp. 4 and 8.
37. Dr. Patrick also stated:
basically, her treatment for her arthritis and her legpains was at the arthritic clinic at GF3Isinger, andI saw her because of her emotional problems and herdepression and her tension headaches . . Depositionof Dr. Patrick, p. 7.
4
142
38. Although Dr. Patrick offered his opinion on the effect
of the second floor assignment on Ms. Brennan's leg pains (for
which he wasn't treating her), at no time did he unequivocally
state that she could not handle this assignment. Deposition of
Dr. Patrick, p. 9.
39. In his depositior., Dr. Torretti stated that he is a
sub-specialist in the area of rhaumatology, and he reported an
extensive physical examination of Ms. Brennan's lei problems
D-position of Dr. Torretti, -,)p. 5 and 6.
40. Dr. Torretti, stated in hi! deposition:
It is conceivable that the climbing of steps might causesome increase in s(mptoms with respect to her ankle pain,.but on examination, mobility of the ankle was well maintain-ed, and there was not any major restriction of motion pre-sent. The knee pain that she was experiencing appeared tohe self -- limited and should not represent a chronic problemthat would permanently impair her function as a result ofclimbing up three flights of s-ps.
Deposition of Dr. Torretti, p. 9.
. At no poit in his deposition did Dr. Torretti offer
the opinion that Ms. Brennan was unable to return to work. Depo-
sition of Dr. Torretti, pp. 8-10.
DISCUSSION
This Appeal presents two issues:
A) Did the facts support Ms. Brennan's termination?
B) Did the Board act unlawfully by failing to respond to
her requests of March 1, 1979, for more sick leave and a
sabbatical?
143
In her 'ief and at oral argument on Appeal, Ms. Brennan
attempted to raise a third issue:
C) Did the District err b ceasing payment of Ms. Brennan's
salary prior to conclusion of a dismissal hearing?
A. Evidence of Persistent and Willful Violation of School_ Law
Section 1154 of the Public School Code of 1949, 24 P.S.
§11-1154, provides for the payment of sick leave for teachers
at the rate of ten days per school year and allows for the accu-
mul=ation of unused sick leave. It further states:
The board of school directors may require the employe tofurnish a certificate from a physician or other practition-er certifying that said employe was unable to 7)erform hisor her duties during the period of absence fur which compen-sation is required to be paid under this section.
It is abundantly clear that Ms. Brennan willfully and per-
sistently failed to provide a disability certificate to the
Board's agent, Superintendent Cook. Her regular physician wrote
c,r1 October 26, 1978, and December 6, 1578, stating that she had
leg problems for which she was being treated at Geisinger Medi-
cal Center. Quite reasonably, Superintendent Cook wrote to Ms.
Brennan or: January 23, 1979, asking for a certificate from
Geisinger. He received no response to this request. He renewed
his request in writing on February 7, 1979. In response, he re-
ceived an unequivocal statement from Geisinger's Dr. Torretti
stating:
From a po.rely medical point of view, I think she is quiteable to return to work at this time.
144
Mr. Cook then wrote to Ms. Brennan again, this
time on February 9, 197: telling her of Dr. Toretti's
conclusion and asking when she would return to work. Not
having recieved any reply to this 1,Ptter by February 26,
1979, he wrote to her agairi on that date ordering her
to return to work on March 1, 1979, or face dismissal.
Although Ms. Brennan wrote back on February 28, 1979,
stating her own opinion that she could not return to work,
he did not submit any medical certificate to that effect.
When Ms. Brennan did not return to work on ,larch 1,
as ordered, Super:Lrecende-t Cook suspended her sick leave
pay and notified her of her termination hearing.
It important to note what matters are and are
not at issue here. The question is wnether Ms. Brennai
absences from work from March 1 through March 13, 1979,
were lawful. It is not material whether subsequent medical
evidence might have supported her claim of illness; the
School Coc2e places on the teacher the obligation to provide
medical certificates of ongoing disability.
Ms. Brennan simply failed to ccmply with superinten-
dent's lawful request for a .,sability certificate. Her c':,ntin-
ued absence from work after having been given over five weeks
to produce such a certificate cchstituts persistent and willful
violation of the school laws of the Comn)_..r.wealth.
Furthermore, as conceded by Ms. Brennan's counsel on
appeal, the reasonable request of a superintender.t may be viewed
es school law for purposes of a persistent and willful charge.
Brief on Appeal, P. 15. See Caffas v. Board of School Directors
of Upper Dublin Area School District, 24 Pa. Commonwealth
578, 353 A.2d 898 (1976), Stroman v. Secretary of Education,7
Pa. Commonwealth Ct. 418, 300 A.2d 286 (1973). Superintendent
Cook made a resonar)le request of Ms. Brennan to return to work
after having given her ample opportunity to obtain a medical
ce,-tificate, and she did not comply with that request from March
1-15, 1 7°.
Ms. P,--nnan arguer :hat it was unreasonable for the Board
to rely on the medical findings of Geisinger's Dr. Torretti be-
cause he had only seen her twice and Dr. Patrick was her regu-
lar :hysician. This :s unpersuasive. Dr. Patrick's earlier cer-
:ficates indicated that her continued absence was due to leg
Problems which were being tr- ac Geisinger. Accordingly,
Geisinger was the best sourc,2 rmation about thos 7;ro-
only or
Torretti was the treating physician for the
that Dr. Patrick had certified, it was entirely
appropraate for Cook to ask for and rely upon his or nion.
Furthermore, h.s letter of if arch 7, 1979, Dr. Patrick also
reported on-L.. 'iwo pertinent visits by ri.s. Brennan 'uring the
school year. -,ne of ,.:rich occurre i after her notice of termina-
tion. As at :)ut, Dr. Torrett had seen Brennan twice
for this problem: whereas, as of February 1979, Dr. Patrick had
only seen her once for it. Whereas Dr. Patrick's examin- on was
rsimarly interrogatory", Dr. Torrctti reported an extensive
examination. Also. Dr. Torrett is a sub-specialist in the ar-a
o rheumatoiooy, whereas Dr. Patrick is in family practice.
Brennan argued at her hearing and on appeal that other
medical problems- -high blood pressure, depression and menopause- -
warranted her continued absence from work. These arguments are
both irrelevant and unsupported. They are irrelevant because
it is the teacher's duty to supply a requested medical certifi-
cate supporting her absence and this is what she failed to do
in a timely ashion. A teacher cannot simply disregard the clear
language in Section 1154 of the School Code requiring medical
certification, disregard her superintendent's order to report
to work, and ti-.11 afterwards try to justify her absence.
I
147
oronts are unsupported in ,7j no Physician clear-
ly state at any time that !.s. Brennan wa unable to perform
ter tot-as durinc her period of absence, as mandated by Section
for a medical excuse.
Accordinoly. we find that aro conclusic
Prer-:nan was absent unlawfully from Larch 1 throuo.. ,a!
f, Ily supported by ai evidence.
B. FPoYestc: for Lore Sick Leave and Sabbatical
_3,
Erenan araues that the Board "acted unreasonably and
is violation of the law by fai1aq to respond to Petitioner's
requests to use accumulated sick leave, to be aranted an unpaid
leve of absence or to take a sabbatical leave."
Tne argument for more sick leave 07 an leave of ab-
f-;ence simply iqno-=-.: the f :t that the 1.?,Fisi found that Ms.
Brennan had not fulfilled her statutory oh:igaon :a rrovide
medical certification of her need for sick leave. Thus, the
'card's decision did effectively answer, and properly den- the
first two parts of her request.
As to her request for sabbatical leave, Ms. Brennan's attor-
ney conceded at oral argument that, "There are several cases
that incle the Secretary does not have th authority to order
)
11. n
. N.T. Oral Argument, p. l8. This is indeed settled
case law rarticulerly where, as here, the School Board has not
ru'ed on the issue. Commonwealth, Department of Education
Oxford Area School District, 24 Pa. Commonwealth Ct. 421, 356
A.2d 857, 862 (1976).
C. Cessation of Sick Pay Penoing Hearing
Ms. Brennan argued in her Brief on Appeal and at oral argu-
ment that it was unlawful to suspend her sick pay from March
1 (date of notice of hearing) to March 21 (date of Board's de-
cisio ;. Even the most liberal reading of her Petition for
Appeal fails to reveal that that issue was raised therein. Nor
is there any indication in the record that this issue was raised
at the Board hearing.
The Department of Education's Teacher Tenure Hearing recula-
cions require petitions of appeal to contain:
(3) P. statement of the issl,es presented (anC)
(4) The relief requested by the appellant.
22 Pa, Code §351.3(3) & (4)
Accordingly, this issue has n: been properly raised on appeal.
N-ertheless, in the interest of administrative and judi-
c economy, we note that Ms. Brennan's position on this issue
is not meritorious.
0
149
In .sppnrt or ler =. on, Ms. Brennan cites the unreport-
ed decision of the United StatcsDistr t Court for the Eastern
District of Pennylvania in Ashlie Chester-Upland School Dis-
trict, Civil Action N0, 78-4037 9, 1979), which held:
to Skehan, the procedural due process rights of dis-charged teachers and professors require the protection ofnothing less than a prior hearing. Therefore, to the extentthat Pennsylvania Local Agency Law permits the dismissalof a public school teacher without benefit of a prior hear-ing, it is unconstitutional. It remains to determine, thenwhat is be done about it . . . Since Skehan compels apre-termination hearng, plaintiff must be returned, asnearly as is 7,r3cticable, to her status prior to dismissal.This means, at the minimum, reinstatement to a suspendedstatus with back pay pending the outcome of the schoolboard hearing. Slip Opinion at 4, 7.
Even had this issue been properly raised on appeal, we
would find the Ashlie decision inapplicable for a number of
reasons.
Ms. Ashlie had been prevented by her school district from
returning to work; whereas Ms. Brennan refused to return to work
and failed to procure a proper medical excuse for this refusal.
Thus, the issue here is whether a teacher must receive sick
leave without complying with the statutory requirement for re-
ceipt of it, not whether a teacher may be barred from working
without pay pending a hearing, Since Section 1154 sets forth
a specific requirement for obtaining sick leave, and since Ms.
Brennan did not ifill that requirement, she was entitled to
no more sick leave.
I A
In '-e--licable br'cause Ms. Ashlie wF,s
dismissed without a prior hearing of any sort; whereas Ms.
Brennan was suspended prior to e full hearing on her dismissal.
For the forecoinq reasons, we would have declined to apply
the Asnlie rationale retrcvely
even were this issue properly raised.
March 1B79 ',r1 this
ncly. we the fc,-10-.,:inc-;;
FD EP
1= rM;,4 rd a'y- of August , ls
Ordered and Decreed that the decision of the School Board of
the Berwck School L;istrict d;s"11ssiri d Appellant he sus
_a ned on the grog,: -.,ersiste:It and willful violation of thc
School Laws.
151
Robert G. Scanlon`:;ecreta-v of Education
:: CY TY.::NSYI:.7.NIA
DEP7Th'= 07 EDUCATION
ja7.es F.
Appellant:-
Teacher Tenure Appeal No. 8-79
Uniontown Ara SchoolAp:)cliee
I AT,Hlant hcreh', 11.9. s appealed from tie
decision of the 1 ard of Director:; of the Uniontown Area School 'Jis-,.rict,
dismissing him as a profeaional e:':.idoyee on the ground of ii=oraiity.
FINDINGS OF FACT
1. P. 1.:eaver, Jr. , was hired by the Uniontown
Area School i.Htrict on (1)!_,e77,:b,:r 3, 1968, and was a professional :mnloyee
of c District techlw the fifth ,,rade at the .lenallen Elementary
at La a Lill, Gf L ieduaL in Au5usL 1975 leading to
wiLhout pay in September 1978. Jr. 279, 280, 705,
2. On Septa.,mber 1'.478, Uniontown Area School Di_strict '-',t1pe.lin-
tcncli-nt Dr. C. tlol.cs ui -hnne call
School Principal Nick (Mlle informinl:, him that James P. Weaver, Jr., had
beer isvolvcd in an incident: n 197, at the In Ten Dt,;,artm,:nt
Store in thL, 7:niontoy7 vhich hai le(7. to
Tr. 230, /-,(1).
152
3. Principal Galie had heard of the "incident" on the eleven
o'clo(-1, radio news. Subseq,,-ntly he -,as visited by a State Trooper
regardin;- and r ,d about in newspaper. Tr. 476, 490.
4. Prior to taking any action _ fding appellant Weaver, Dr. Flicker
received rt call :rom a parent saying that she represented most of the
:.others c the children in Mr. Weaver's class, and that they intended to
withdraw their children unless some action were taken in the matter.
Tr. 281 -Si
5. u ed no ccl1s "our parents inquiring
yhat he going do with M.r. Weaver. Oiie stated 'That, if
done, the we 1g to take tneir kids out of Mr. av'er's
room. A1 we_,,2 r -eeived after Mr. We.),-ivcr was suspended.
c)f:
7,:;, P3.
,8,
,:ent El, her conducted Cii inveL'_ig,ation which consisted
to of the 1;on Tc.n Dc;-.31ent- Suore;
n;- to a
() Speak:11g
4')6; and
Tr. 455;
Tr. )1;56;
Magistrate Park,!r;
27, , \..,Jth) James Weaver, Jr.2
'it trr ney, jamc;; Wever Sr., ahr. two ?SEA, r-:pfef-;entatives;
Tr 280, 281.
At the tt.etin,t7 ,S('ptmhor- 11, 1970, apt -Hilt Weaver
that he d been pre:;cat at the site of L.. all: Ted in tent,
t , tvc.(.1 a .arlt and a line war paid. Tr. 292.
8. on September 12, 1973, Superintendent Slicker sent Appellant
Weaver a letter, Teacr's Exhibit D, telling him not to report work
until further notice p-nding the results of the investigation of the
incident at the Bon Ton Department Store. Tr. 287-288.
9 On September 14, 1978, Superintendent Slicker sent Mr. Weaver
a letter, Teacher's Exhibit - telling him that he would recommend Mr.
Weaver's termination to the hoard of School Directors and that Mr.
;:-aver was suspended without pay from the date ho was initially informed
neL to report to work, pending further action by the Board. Tr. 288.
10. Sl;perintendent Slicker's decision to suspend Mr. Weaver
without pay was :lade on the advice of counsel, Mr. Herbert Margolis.
Tr. 289, 292, 454.
11. Superintendent Elicker contacted Mr. Margolis cy telephone on
.:,ntember 5, 1976, to find out whether the School Code would allow him
to suspend Mr. Weaver after his arrest and pa:ment of a fine for disorderly
conduct. This was the extent of Mr. Margolis' advice to Dr. Elicker on
the matter pole to the termination hearing. Tr. 463, 460, 454.
12. At Mr, Weaver's hearing, Mr. Margolis sat with the Board and
fren-nly act,'d as chairperson and ruled on procedural matters.
13. A: . 7'S hear!ng, the administration's case was presented
by at tome Wi mm -c1cliffe, hired by the card this purpose
pursuant to a mom 'co on September 18, 1978. Minutes of School
Board, 80. combo.- :8,
14. Alt, :c lis offt- :d to testify as to the extent of
hil; prior conve, -.11-c1-1_7Lc- '-at Elieker, M,. Weaver's attorney
did not cull him . 471 .
154
By letter dated September 19, 1978, the Uniontcwn Area School
District advised dr. Weaver of the Board's resolution of
September 18, 1978, to the effect that he had been engaged in immoral
(Tonduct, Drop,-.sing that his contract be terminated, and setting a hearing
date for Octobcr 7, 1978. The letter quoted the folicin.6 statement of
charges:
20,
about Frida:i, August 25, 1978, in andLha Bon Tun Dei,-)tmcn!. Store ...a the Uniontown
Yail, a public plac -:ou acted in a peculiar andi;,moral a female emplo%, of that(..;jinmnt in that you unduly followed her aroundthe itcre vh Li abc s p,2rforminr, 'ICY duties, ,7n1
that, at Yaric:u; 71t(_,yv, you made rude andveer lad at or near your
2. Oh or about Saturday, Aug6t.. 26, 1978, :L.aLoL' t_nL. ban ion :),T,::,1-1_1.-t,flt: SLorc, the
a 1CO Hac:C, you ncLed in a pLcuiiarcm:)1c)o 0-
yon unTh]y the
pelforn;-_-, her duties, and t at
in'Le17v:ii, you F.Jade rude and obscene gesturo::::
'cant hand at r rear 'err ;;c nit . LEd laid dot!.ecceden Lu 1.)ok up hr dress.
Lath occaf-,ion
'LH and act :::H by 'LH' puhl.ic,
m,ly your nor' ri I
-in]c in t.ht_!
Ci Do. 7.
cnnt.11111, r(itIcsLt_(.1 Darer 'a
otoHL;.- 23, 1/8. Tr. 17.
:he hc,:r (_-(1-.:1%!nco..1 P:1 OLL,ii.,r 23, 1p78, the ;rdritOatra-
the dares in the 'Board
:!n,1 a I a ,aturdav, August 27 and
ThLr.-,dav H'ija- AuL;tu;t 2,14 wad 25, 1978. 7r. 8.
155
18. Mr. Weaver's attorney at ths stage of the hearing, Ronald
Watzman, moved for a continuance so that he could preoare a defense
based on the revised dares. Tr.
19. Mr. Watzman' ,ti::: to continue was denied on ia basis that
the September 19th latter _ated that the charges occurred "cc or
about" the dates specified. Tr. 11-12.
20. The motion to amend the date of the charges was granted.
Tr. 13.
21. The Wecc.-..-: hearing included testimony (October 23,
1978, November 21, 1978, yovenber 27, 115.. January 8, 1979, January 9,
1979, and January 10, 1979) , a view of the ii Ton Department Store on
January 10, 1979, and unrecorded oral argument by counsel on April 16,
1979. Brief in Behalf'of Uniontowia Area School District, p. 6.
22. Tes cv at the hearing focused on Ir. Weaver's activities on
Thursday, Au 1976, and Friday, August 25, 1978.
23. Substantial, Thi e, unbiased eve-wi teas tc.Limonv by a
secur-ity guard indicates and the Secrcr. )f. Fducat:an hereby fjudn
That on the evening of Thursday, August 24, 1978, Dr. _,aver, in ri
(1) .-tyd ;Ind (); froilL
of his body
ii ,...-rrrn in Sin.,
(2) cont-illu3ily
(3)
27, 28, 71,
w.-ra ted by mcv.in i a tat
156
(4) then ,as chased out of the store to the
parking lot wni he drove away in a yellow Mustang.
Tr. 34-35.
24. On August 24, 1978, Mr. Weaver was driving his wife's ye-11°w
Ford ih .:stang. Tr. 721.
25. Substantial, credible, unbiased testimony by another security
guard and a salesgirl indicates and the Secretary of Education hereby
finds that on the afternoon of Friday, August 25, 1978, Mr. Weaver
rt_urn,_:d to the Eon Ton Department Store, Tr. 152, 303, where he:
(1) crossed his lugs and placed his fe .arms
in the area of his genitals, Tr. 216, 277;
(2) rocked up and down from hi.= heels to. the
balls of feet while he rubbed his ilitrf1H inst.
a display table, Tr. 163, 164, 247, 311, 316, 2-1S,
and 397;
(3) got down on his and nnd k.nces, . 1 66,
167, 2f)3, _, 406;
(4; ebbed himself with both nf his 11.. MST=
below t'-,e Y area of his pants, Tr. 310 ,87; tine
(5) lay flat on Lhe floor, stomach a,
, looking up the dress of the salesgirl. T1-.
-/-423, 426 and 427.
26. The sa 7,eirl wzn, _,cared and offended by 11-. Weaver's bcir or
Tr. 5Th, 40q.
27. On August 29, 1978, a nog: traffic citation against James P.
Weaver, Jr , was filed in the office of District Magistrate Harold
157
Parker by a state Police Trooper. The charge was dise]-1erly conduct.
The "nature of offense" reads:
Actor followed Becky S. Blair around theBon Ton Department Store starinn, at her,libbing his private area and two timeslaid on the floor and looked up herdress. Tr. 116 and AdministrativeExhibit No. 3.
Sherrie Weaver, wife of appellant, signed for the citation on
August 30, 1978. Tr. 865, 866.
29. Appellant Weaver read the citation when he came home the
evening of August 3. 1_978. Tr. 0i65.
30. .71:les P. Weaver, Sr , father of appellant, paid his son's fine
fnir the disorderly conduct charges of $100 plus $26 in costs. Tr. 117.
31. Various Board members were absent during different parts of
the hear-I but all 7(Xd the transcripts of the parts they did not
hear. Tr. 1006-1(-a.
:.!r. Radcliffe submitted requested findings of fact
;lad conclusion: of law to the Board by letter: dated April 11, 1979, none
were ever adopted by the Board.
33. Rather, the Board met on April 1. , 1979, and took two roll
, 11 vot( , as follows:
(1) have the charges or complaints against -
James P. Weave- i , Jr., been sistained, and does
the evidence substantiate such charges and complaints?"
The v was seven yeas one nay and ono absent.
rector joseph Ciachetti mo,:ed that the
or ;Ional employee contract b(.:_: een James P. Weaver,
and the Hilontc.wa Ai oa $chool District be
terminated, that he be dismissed as a professional
employee of the Unontown School District, and
that this suspension by the Superintendent of the
Uniontown Area School District, without pay, effective
September 12, 1978, be and the same is hereby conf:r;,,ed."
the vote was six ye, two nayr: and one absent. Letter
of School Board to Mr. Weaver, April 18,
34. Nr. Weaver was formally notified of the Board's Lictions by
lett ; dated April 18, 1979.
April 18, 1Y79.
Lte, r School Board to Weaver,
DISCUSSION
This Appeal p e-ients four issues:
Did the admission of the disorderly cor-,due,_tlie decision of the school board unlawful
cad lacking in substantial evidence to sup. artdischarge?
Was Appellant's suspension without pay bythe Superiendent supported by substantialevidence ;.st3 proper under the ,->chool Code?
Was the Appellant den process of lawby virtue of the Administr late amendmentof t_HT ehazges filed again end by .!irtueof fhe post-suspens pro.eeeings?
If the credibily findings of a Board areimmune from challenge on appeal, does the failureof all s:hoci. board members to attend eachhearing mandate that an independent review ofthe case be undertaken by the Secret :ry and, if
does !tubstantiai evidence exist L-) sustain,_he charges;
359
A. A,(1,H!,joh of the Disurch.rly Conduct Flea
Appullat ,71,:nce of 's dh;o7derl: con,hiof
citation nod p:.:me:It: of fine by hit-, lather no ioadnic;:iLlc n:
without its ach7W;ion thc Lard lickcd substantial evidence-, to terminate
him for c,-Jo Appollas.t further ary,:cs L hat occoun Fir:
fa the: con iF fino t -o:-,1:ictioh is ir:(:Lgular Ln(.1 shoult(i net have
c of ti-
oviJene in
v. Sclh(--c,
no
f lion ore e
' thcit ;olo coo, rHo C curlpetcht
nih,-; on t -__ :ssuc
t:..
payToir. pi H. Hh.. to H nolo ( no decs ;_ij)i,e17..- it in
I .
L
;;lrlrlC zapncal nr
Co of ':isorclorly con,'
1ff Ont
.;'-ed, school,
piescht his
rH, oven %,,ithout_ relianm2 on Lhe cotation.
_.:t 25, 197' . to
tr,-Innoript jolos of
. 1 ' i Cr101 cI ;11d 132 p1 pr,t,e.F. co:
160
'jot oh .J in;
hon
St f::: ny way School Board clearly had
subs, _ cool L evidence - vitho,it rcferenre t:o the disorderly
co- "..ct ea:La:in-2 - on which to rely or its decision.
Fc:-Cler:nore, i coed jUL videnci was adduced to
at tIe: ,t_o:Je en Thurday, :.:ust 24, 1973 .
to estall5i. elhe:e. However, the unbiased
o: enter-c the no
CL :1(-] perpctrs,tor 1.0 f.:ubse(;ucnt..ly
'y.eaer at the hearing, con..:_itutes crec]iBle and substantial .;:ide:-Ice
was tie e, ,or: who in the il=cal. condc,ct..
The Hyo( ve,:ed to :.p]ellant for immorality 1:nder
SectioJ. 1122 of The Public School Code of U-1-.), the Act of -r'larch 10,
1949, P.L. 30, a::; amcnded, 2C 5.5. -..:11-1122. In this content, the
court have consistcntly dej-ined a a con 00:: of conduct as
fl:f,-cjs the morals of the commuit.,- ...ample to the youth
whose ideals a teacher :0
School. -1:,,rjc: v. Croci, 33 ha. U :i::onw::1th Ct. 501, 510, 3R2 A.2d 162,
(1970) . AppeliHnt. alleges that the School District's decision
lached dir toot 101 evidence because the District produced no vritnesses
stacino that NY. T,.;raver's condur. o' t1 morals of the rommunlly
and no testimony that he had cat 'our:;c of conduct. These
contentions are unsupportable botIl legally and factually.
in PennTDelco School District
that a finding Pf-
Ursa , the Commor-ealth tciurt held
orality Yin nuL he distuil,.d if "a reasn
an:jog reasonah_H ght have reach
Board." Pa. Com7
same dec.:. -ion reached the
..,ealth Ct. -It A.2d Indeed Appell-.nt's
161
ten ad7linistn:tive and judic;1 deci;:iens on
t emu: 0 0 5 whre evide,-ce of contemporary moral standards
line of cases
: c .denoe adduced at-. the hearing on
-.nd the district superintendent
Pro:: Larents incui7 ng as to what TJould he done
wit in two clae, iireptening to remove children from
iP he wer romovr:d. Also, the salesgirl who was the
o.:L/victim tet:ified that -:as scared and
it.
de !_to Appellant's assertion to tht:. ,ontrarv, the School
near substantial evidence that Mr. 1,:cav-.- had entered
up an immoral course of condo::, not on one, hoc one two separate
occasio, August 24 and 25, 1978.
cven without whatever proba_ce value was attached to
evic. 11 ho diorderly conduct citation, the School Board's decision
is supted L1_, evidence and cannot be overturned. (See Sect on D
below fc,r. a of the criteria for review of the evidence. )
B. Apl:(Tht Without Par
11). -,ct of P(..:11:3y-iv;nia 11Js enlicit]y held that a tenured
teacher ._;pended without pay pendiLg a hearing on dismissal for
conduct. Kaplan v. School District of Philadelnhia, 388 Pa.
223, 130 2.. 2d .,72 (1957) . The Cou;t held that a superintendent has not
only thy right, but the duty to suspend a teacher without pay if he
hink:; :hat L r the s in a Leacher 7:ould
! f. fain t p at 219. f;uperinten:lent. Slicker
o.fter .mmarizy in Finiings of fact. a. 2, i rued'
had t,dfficieht greu,.,:.: to ,:pfler-nc for the wc1fare of Yr. We...ncer's
st,_.:dnts to warrint triO. r,-mov the classroom.
in 1 past_ teacher tenure ;_wen7f CL
11.:\e upheld tn, right of a supLr,otendent to suspend a Leci!er without_
1-ay peifl,; a hea-zirig. v. f',tec.l Valley Area School District,
22f, I'l-...in;jer v. Philaf-'.phi;: School Ditrict., T.T.A.
c:tLY tic in out deciloh of the
Cutt for thl_. Eastern District of Pennsvlvania in /hlie
tool Liut_ro.t, Civil Action Nu. 78-4037 (May 9,
cc his smspenuion Litciat ore. The Ashlie deci;:ion
f :
inn, the procedural due process rightsci U-i:-.c}17irged teachers and professors require
th rotectio a of or ing lcs than a pr,irnoaring. Therefore, to the extcnt. thatPennsylvania Local Agency Lay perm the
dirimissal of a Public school teacher without)enefit of a prior hearing, it is unconstitu-tionJ1. It remains to determine, then whatio to h" done about it. ... Si ore SI,chan
compel:. a pre-termination hearing, plaintiffmuL;t he returned, as nenr1-,- as is practicahlo,
;11 II;; prior to di :;111l s on 1. Tb I r
t t he till 1-C11.U:tat cment: t n:at us hacl: pay pehdin.,, ilie outcome ei
the Scire tn hearin, t. p ('pinion at
4, 7.
Tmor, in ry in !AI( '()nt cut 1, .., 0177111.1" h"
f;!n,(1 .;;1 1,- of F,1.1n
aspun:
163
his
to
L pay, WL:H
8:11icrint.,..nt:
iLr 11 1978, prior to
given tn.," to be
(c) (..]-ft iie found that there
3L, ol-:72;ortunity (several weeks) betwcon
111:- tiir:e of 's immo:21 cc)11cluct and
tcaching in Yvh.:_ch tine
I have boen concnictntly held."
in th., t ;;I:ri.ntendent. Elickei
hc2ri ().: the rigainst hr. Weaver
nil r )78, L-ind removed him from the
1-(,nlE on F,ct ember J. , 1978, inufficicnt
t 1.11;
In 'Li LL:.;: -_;;; ;A-1.c Lherc appear: LC nfl
rc,", t to 11-. 0(-1-
1 -in the
164
of me.lt of in the Charges
ulensio!: Proceud
of th, OctohL.:
that
1978, of the dates set forth
0111; L. 'Cr c
r he had advjs,,d S1_1;),.rnt(dent that be
thL The
resta.
!: in L i,receding ion c
A&; reards th of the c11:_irge:, :7 fl:fjob,r 23, IH7S,
of LI
-Irgucr that tb:,_ ! nonstitn violation of 303
pool Cole and due process. are_
"Ihe counts have not require the specific]
't.fo 1127 n,:Aires as nr11mina1 ind-ict=nt:i. Cf. hu(_:c".HA
ol Education, 25 Pa. Cc,rnmonwith Ct. 419, 360 A."'d 310, 312 (176).
The original, c71,-nded notice to Weaver, luoteC. in F:T.nd'H,(L; of
15, sets forth the actions and those actions for
Mr. Weaver was ult:-..ately it 5.-(ited they took piace
"on mr 11.,L)11t- Frid:iv, August 25, 197." ThLse date:: To inter : ndeci
to August 24 and
c...:a. 'J
nnro neric,us and led to the di-c_nerlv conduct
W( In a similar situat on, ' le Commonwealth (I,urt has upheld
dismissal c the n c., an here, was correct in art as to daty: .
165
c-
r
te-J-5 t-ber thni-, pro-
!. i f
cle;ir
(! not re: oril it to ;,d,.. the bon:-(I
thc Inc which Lie chnri
Pc of trjct 33 Pn. CoionvTe..-1] .
J .1(iS ( 57()) .
166
ood
(1,L;Lul-1,,Ld why:1
fflihf;trIn!':: :.
371 A.2d 1UL:6 (177`Such suhntaniin] evidence nee e.m;ly%junLify di::m1snni is determined
whether -1 reJnonJble r. m ;Icting
reasonnbly might hnvc tclIcd the
same decision renched 9v theand i v. West_ Lhes.ter :u-en S,
. Htrict,r,.2d 895 (1976). it in J:p;ii nt in
ci
167
(,f L
Of t..ne,0
ho
.117,dt,rt
Schor)) Ci I c . to
CI. A. 26 (1 Lhu
1.1uc to the
017 L: H uii
not bei1 eve, ho-,:evur, Lot itLbc Secret'LrvH power to
ouist judgm,IL reardin;.",' credi'liii!:v thintlt of the irC A.2d rit
(:-:1:1t: (i cC
1-)15t1 403 A.2c1 357 '''J75), 1-_Lu
Court 'field
CO
u-1_1-.11-::a to fI C iiuturc :1(1 ,
goer the po tn detcrmine thecred.thilit.y O vili
of thc10 tbrI in (.1-r.'11 to 1,(2 h-rHA. 2d Cit IC'),
It_ ;11,pt
di;>1.-,11:-;::;11 (00 00] vi
on the Bo:-Ird' jIHTmont e IL' cl-cd ; y 01 t.ii000O (P,---J)t.1
become the foot I injt::- .
168
691
TUSSTAIISTp 1_10((111 .WouTmdi JO -101Th
ol uw..;ual 1J3Juldu ou q ;u;17)(1 uo.ij Dnpuo:) StIOAPOM i0
ssoulIm 'DO1y1 U3ACf) lj prpd oq .
sT.r, (!!
Jou !ur,,,
U0 ouo: :orI 1nD(1 T -)p0:1 -17111j1:3 F2- p.i.jm
110!-,-)A 00 pflqorHld
gp!:..Tp irloq LOO. 00
f.
1.7
flql miun
11! Ttr j I [.) _11
[ : :3
4%7: .1°1!..; U01 0..
: : - a:
:-
,
170
C.
3
T. bJas tho dt.-cision of
Loar(i. Dir 'Lors Lln Schoc.-H missing
LS prC):USI on t.:t_t rs-istent
77'
lo:Lo of the
11 C
tno Loi bC);.7(:. ApFiA I nt
;-;cin.ol Ihn rcL S p. 4
3. On lbnnni :, 1' -Th it Lhi c cnry
;:.
ht. 1-)ruary 1/4 nrici
_
Appylit o
re- in ns
he Soo' -onrk School! pp.
I
I).
71
6. On February 55, 1959, the ,e]lant submitted a written report
fr.ar, Dr. ;Pie:. Rankin stating tb: the Appellant was ill on February 14
and 15, "79 (N.T. p. 5).
7 The report prepared by Dr. Rankin was based upon into: t ion
suppl ed to b5m he Appellant's hu.sband and not up.1 an examination
of the Appellant , 1 p. 5).
8. Subsequent to the submilon of his report, Dr. Rankin contacted
the school district and retracted Ds repert. (N.T. p. 5).
9. The school district refused to accept the absence for the days
of February 14 aud 15, 1979 and denied payr:ant of the salary for those
c ays to the Appellant. The district conside of the absences for the two
days to b unexcused )serces (N. T. p. 5).
10. In 1977, the Appellant had applied ft r ne:sonal days to attend a
convention in Coldfornia, -hich reques: was denied by the hool
diats :r. The J.r,Peant did not attend th convention (N.T. p. 9).
11. The A,:pellant requested sach lea- days for FebruTr.ri 14 15,
1-779 leause she assumed that a request fltr the use of personal days ,dould
aain ciniee, (N.T. pp. 9-10).
12. Ac t,h the Appellant, and not: denied by the School
,.qumulated !cave d:-.ys, four personal
d.P:'e. and lear persil clay- (?1 ta 1i.r sot Scenes (N.T. u. 10).
13. Tbe Appe]ant was so cc in, from a chronic s:uus condition with
em.:.: ma and eye pa.n for ret ot the 1978--I 975 school term
(N.T. p. 10).
14. The Appellrtnt request (_l doc.ter's excuse for her absence en
February -.5, 129 because of her ailments (N.T. p. 10).
172
he school
Appe.,]L,ht h,n- a profess±on on the
ounds -)r.1:1-sL:::-;t: and w711-1f,..13 the F.chncl
laws.
held on M*.arch 27 1979.
On 'fl. thc sche., JuarE the Appellant as a
/
empic
lette/ 7, ,^-..ppellenn appealed her dismissal
dated May ??, 197c he filch a Notice of
intention :o offer Additionl Iestimony with the Secretary f Education.
In her Notice, Appellant oought to offer the testimony oh all Lierers
of the Dc rd of Sc-:.nol Directors of t Bethel Paik Fchool District; the
testimony of the ._,chool superintendent of the school district; and C'C
testimony of a teacher in school district.
19. On June 1, 1979 th request made by Appellant to Lake additional
testimony was denied by the De-nrtment of Educat_on. On June :4, 1979.
the Appellant submitted an affidavit in th,r support of the taking of
additJenal testimony cf one of the witnesses listed on the request pi--
viously denied by th-3 Department of Education.
20. A 'nearing was held on October 3. 1979 before a hearing officer
appoint.: ay the Secretary of 17ucation.
DISCUSSION
A. Immoralit
In its statement of charges dated March 12, 1979, the school district
listell the following three events to support the charges of immorality and
173
-')
J
HetioT. of the se_hor
oh February 1,- .h-:d 15. 2 79;
:else report a exc:sea abs re for
-=.ubmisfe.1,_:-. of a false and ra e.'
ee-iied le lLant obseorax on Februeey
The frs- made by the ,:sL whie. the unauthorized two
dac a,snce of the Apellant from her d7_,ties eannoe, as a matter of law
vevjde .he bas.: for a finding of immor A_1 Immorality has been defined
a.s cours of conduct as offends the morals of th-_ community and is
bad e_ample to the you.th whose ideals a teacher is suppcec to foster and
to elevate". Pr..)rosko v. ',ount- T)leasant ScIT2o1 District 7. 369,
6 A.2d br 565(1939). The Tailure to report to the r.ossro ei two
f!..ys and of itself, cannot be said to cffend the morals rna communi
and _ a bad example the Appellant's student;.
inc -r chee:ges with she Appellas submission of a
false report of excused absence and her procurement of a false docer's
excuse. In man y respects the present case poses the same questions decijeu
in the case of Anpeal of Barton Howe TT Teacher Tenure Appeal No. 296.
that case, the Appellant submitterl an absentee slip list-in- illness
the reason for hJaieability to work on two days. In Zact, the teacher was
working '1 a department store on the two days in question. In reversing
a he teaehe'T's dismissal on the basis -: immorality, we concluded as
follows:
We believe that the Board has acted in a manner lreasonably harsh in view of the circumstances. I:
view of the fact that the Appellant was an eieht yearveteran with a record previously above reproach, we
174
Jinc.
an ,21)5;o of board u nior. A si7:j7! r.
not so indm:ca] =- 0. H.,e
necr,ssal-ilv
the stud relati,nship. In this
thorn has -een no clear nexus established bet ton
teacher's act of lyingfitimss teach. inc. we reverse tbdin: ssal on the charge:: of imnora]itv.
Cn the Corr,monwealth Court oeveroii the dec.: s20f1 of ..hc,
because of the Secretal-y's improper re-,- of the
crediT 1 of wifm_sses. BC-17:1 of Schott Direc Be
Schcc1 District: v. Barton How, TIT, 339 A.2d :214, Comm y Ct.
(1q26). The teaher j: the Howe case 7rgueL on ap-,-Deal tha.:. the Sec,-
had a ncluio as a matt,_-:- of law that the teacher conjuc- did not
to immoralYs the court dismissed rue techer's arwl!rich because
S cretar, did not o] :ci.rio sete tt the co.:],.:ct did 7.or
amount to ma :r of le-,
his opinion we conclude That tic teacho,l's condor did not amount
to f=lor,711Ity a matter of law. it: reE.jing this de'cer,..-lation, wt have
not re-valua the crudiblait of the witnesses but have acccrt
into the rneord of the .caring below. In the
present case, the Appellant h.-.(1 acc lated c. sick leave days, four
personal days and four personal. days credited to her H:irement. There
is no evidence in the record that the Appellant abused her sick i e ano
persona] leave privileges. Indeed, the number of accumulated sick leave
and per-nnal leave days leads to c iference that the Appellant did not
have a ory of L_:_:,nt:e_eism
175
k7()::(h1(
car
bear throu:',he ;:rcfesicnal
of too Appellanl_ amounted im7orality as
the ,our t.
:e-.-er that
lot feel _..at co:_:
s. has becn
-e the ii - the
s'!:o,_-)1 board in oase.
B. Perirf.:It an v:i711:1:1 ion o: `,'hoc..]
the h,,ar inr held this a: :rep" befl . a
the Hclucatio- the ILr the school district rated
the 1 of the. 3oard the lismissal of the Appellant
cutely The In add it )11, the c r
stated tna'.. Liter
the
-i.7.;sion of the and consir tn of
( (, that there no boric..
the chLrge of Ter-is7r_nt violation of =he scL:,o1
(N.T P,c,:src,
Al st appear on the recor(.
a 7; P ^r''' b.:- the school . the cal t 7e: nersTistenL and
the ,:narge does not ap-i)ear in the record
of the cying submitted to the Sec:etary of Educatio[:. In
:1_6e so col boards that their 111. in tens nel
actions shout, 'I- ri- ate the statutory charge upon hich their final
vote is bc:3ed.
Becaie the bcrd's atto-i-ney 11: clearly state(: charge
persistent and willful violat.. was not supp,:ted ! toe is
176
1...r..th c.
def act arrid
:ncLivia .
preL.
The
1 or
tour
L.--mLY:
and vic . .:i ,_. c. iriwE. , ,c,mr.--ed H.: only ore -,ccasion.
cc k_vt-:ts t.:v' -- re00rt .,xcusad rIbF,T-Icc- ad
th,. ,..IJTf.is a false hY sF. 1-:-.:.c.o-.1se the:. occ 1----c-_:
only one e_.::dS1.-,5 -1;s.. -,,e,.'.is car,- su7.- cot :.,-,.arge of p...ris4cLr' nn
ail .1 vioi:i:_ion t ..,c:ho,:j _]--,
....,.. event 11F,ted 1. '..: u to supportn c: :.irge of
pro:-1
:1 hence
violdtio7. of the sch. laws yds the Appellant'::
sThool of 7:-Lr 1979. We do not feC. .,at the
Ap7ellaw. s aPr from school on ::hose o. -_!S amounted to pc latent
and willful Jiolation o: e school Prior to 11,-7 sence from school,
notj: the district that ohe would not be present
f,--. he 'Teaching duties on -:ebruary 14 and 15, There is 1-,o evidence that
school di atric t ever informed -le Appellant prior to F, wary 14 that
be absent cn the days in question. Upon her return, the
Appe]la., applied for the use of sick days insted of available p.,:rronal
leave ,-!.yc hecause her request to use personal leav ./s to attend a
177
any
apply f 7
her ace
of sick d_. -
In a lation
rice . ,W th:- techer's uct
,ncy In this case so act see
d
Eefore she left for :yew Orleans, the
_strict that sne would 7 presen',.
ad She was fold in
11-( s13 was not _owed to he absent on the days in qur,st:.
:Lances, t'!--7,t- the Appellar-7 dizi not w'.11full-
n g ;
178
)7.
Lobo-]
179
the ID( -(-1 of
r--
Jdi:cIl 117 1111
A7-ellee
- e, Thomas, herein, has apealed :rem a .nion
Scheol :lstrict de: him as a profes--2,a1 .
FINDINGS OF FACT
Appellant herein, is a prefession:,'
F-t-town Sc ol Dis.nict anci nas been coati .ally eapla
said sci.Jol di,n..-5ct as a full-time tce,1:er for, 'ice (9) years,
2. During the 1977, -3 and 97-',-79 school years, )pelia: . :as one
of 1.: empleeef-. . the pirisLcal ation coaching staff.
As oP ember 5, 1978, the beginning of the el 78-79 scacol
year, had completed nin,_ :Al years of service with .he district,
having :2,reatel seniority than sin othc, employees e,n he physical. educr-lon
4. For the prier 1977-78 schao -cear, the Appellant acs ranked
low, among all 11 ...1ployees on the physical education staff, in
of efficiency and weighted efficiency rating.
1801.
=
-
te be te'.:c
19 7--79, the
enroll=7,... of 1/-,13 or
-elhe Ce:Ii7:e in
et -7 the of
1579-S0 school yea: :strict
loar7 of School Directo:s
cf education tecchin position
20ep71-tf salary reduction was warrented
reco7.1o.ended that the above ---eductieh he
effic-=my azince, seniority-7,7eighted efficiency
we eic.j-: positions of all physical education
- L.eniorities for 1977-:a
F rankinc, 1 terns of the above
7-!-d to the Board that the :hwsical
e,lucatic. ac: fng :-Y,:ellant be the one reduced to half-time statue
a preptieh...e hT-cra5c in ''alary for the 1 80 'hool year.
y 9, 157?, the Ecard sci..duled a
herirni, (-)79, in th -vent the Appellant did not consent ti
reduction.
1(). Anpellant was if of the hearing by lett dated w 14,
79 and personal service by the cistrict sunerinZ'endent.
Appc'lln7.t refused to cc isent to the reoletior. and a puliic
n :fay ?4. h979, ;oh bc..70-.-e the Board.
151
15, Co or cec-,:isi 'Joe
1-_he
or o'c
i(i - On cr a
A, .,t-,.1.1 .
saThrv.
j.0:1 f- 1ie Cc;7117:-F,71%,,,,11:1) of
t-ne --Jrd in rccing Ilic position non
1)1r7H-1;-1(r;
the 17c..(7uct1on of :,ppell's
nm,-..unt,7:d no
Codt.. f 9, Act of -.I:arch IC, 1):49, P.L. 30, no amend ._"
§11-1151, (Schok deal :.,(!cffically th dcmotions:
su:
...h7:-...T ,-.1-'_: .. th.., .
. .
or!-,7.- --;o. ' 7::-.... .--of-(:-_-
: Ition..-::
.,,..,,_,,
.:_, :c-7-It is not n--___-:-.1-.'..
: ,-.H.... ._; -:.H ol:-:,_, .0 _, rH,L :..--. _ hcr:fT.in ',=":: :--,-,-.7-
:-..-.ir LL' :-:,"..-:, - .. ,...
.' :TISL- n: t:: C::
.cn
1:', i-_:.L' . efro the 7 .-ry 'Lc-- :-.:---11-. .'..-s
: n, .:- :1-,-:, Eull ..-:..-.e .Y,-, 1-1;111-t-..-.7.e. Al.--:fl .Lile
7
V.
?C 735? (1976.
In ;_. canc, Appe]li:nt that: a s'.2pension occu,
:;(2c,:1- 2/4 ,Lhr. 3 Co(] deals
suspei-f,ic-,n :-,ecti_on 112 d be chractoi.
lou,,;11 the -1-ayinf r a -)refeon. which is
ti !,flpjl cn of t9 .2 frc:: h-L7
21?, 7, 130 A.2d 675 (197) (emphasis
added). In too -1-ore. the :7,c the ppellant was not 1Hcl
c.f or furloHHie(! His n L IC wa reduced in and responsil-,Jlitv
t. to Therefore, it is clear Lot the action fr
t Di,;trict: in this case amounted to a demotion, susp,1:;;on.
ithis u,-1-1. A suf:pnsion, the Secretar',, wou1.0 not have jurindi on
r)11(] therefor uld 1Nlvc the appeal.
1P3
Lh-1L zenr
School 11(7),7,r(] dn
anC,
r fore -w-; for two
llv a 57:.1.-",c of.
Lawrence School fli,c:ctrors of
400 299, (1979), too :(1-jr(mon; of rat-M-Igf-, necessrir-
fc-: :-,uspcnsions ;lot :Ipplicribli2 to do 'ions. l'atcL.1 involvec
arr,ued that rating d ' nc,t con ;nrm to
7,-)v rol Tn the 1,-7-.7nnv-alf,
Cour:. .wrt2eL the Secr,:tary's intc,rpretLion that 5.L.C('
was not tomporry profor. tonal e7ployc-,, and since
or thc. .actions of tho School Code requirin
appl:, Cono:erO j7mi_th not determinativy n1
demotIon.
184
not
of
9
c.1
jc A.aas uoilleTs -D
oq3(j
7.7374 '
)7;6 1-
iiCFd
COMMONWEALTH OF PENNSYLVANIADEPARTMENT OF EDUCATION
ROGER J. MORGAN,
Appellant
v.
ALTOONA AREA SCHOOL DISTRICT,Appellee
Teacher Tenure AppealNo. 12-79
OPINION
Roger J. Morgan, Appellant herein, has appealed from a decision of
the Altoona Area School District dismissing him as a professional
employee on the grounds of immorality.
FINDINGS OF FACT
1. Appellant, Roger J. Morgan, is a professional employee of the
Altooha Area School District, having been continuously employed as a
teacher since the 1961-62 school year.
2. On or about May 3, 1979, Appellant was arraigned on various
criminal charges, including involuntary deviate sexual intercourse,
indecent assault and corrupting the moralsof a minor.
3. Appellant was given oral notice that he was placed on suspension
without pay on May 3, 1979.
4. Following a preliminary hearing, Appellant was bound
court action on the criminal charges.
19'187
etv.ttr
5. On June 28, 1979, pursuant to provisions of the Public School
Code, Appellant received written notice of a dismissal hearing to be
held before the Altoona Area School Board on July 11, 1979.
6. Said notice referred to the recommendation of the Administration
to the School Board that he be dismissed as a professional employee of
the district based upon a statement of charges attached to the letter
which concerned allegations of sexual abuse made against him by seven
(7) of his sixth grade male students charging crimes of corruption of
minors, indecent assault, and, au to two of the students, involuntary
deviate sexual intercourse.
7. At the school board hearing, Mr. Morgan was represented by
legal counsel who requested a continuance of the hearing until after the
complete termination of pending criminal proceedings in the Blair County
Court. The request was denied by the School Board. Mr. Morgan's legal
counsel raised no other objections and, with Mr. Morgan, left the hearing.
8. The Altoona Area School Board, after Mr. Morgan and his
counsel had excused themselves from the hearing room indicating that
they mould not remain to hear testimony, heard the testimony of all
seven (7) students.
9. The Altoona Area School Board, at a special meeting on July 11,
1979, following the hear-lig, voted to dismiss Roger J. Morgan as a
professional employee and so notified him in writing on July 19, 1975.
10. On or about August 11, 1979, pursuant to Section 1131 ofhe
Public School Code, an Appeal was filed by Mr. Morgan before the Secretary
of Education on the basis that the School Board had improperly denied
the request for a continuance.
194188
)
11. A hearing on this Appeal was held on September 13, 19/9 before
a hearing officer designated by the Secretary of Education.
DISCUSSION
In-taking this appeal, Mr. Morgan, Appellant herein, contends that
the Altoona Area School District should have delayed his dismissal
hearing until after the disposition of the criminal charges pending
against him. We find this contention to be without merit. Accordingly,
we must sustain the decision of the school board dismissing Appellant as
a professicnal employee foi immorality.
Appellant's position in the instant case is that Appellee 's conduct
in holding the dismissal hearing violated .Appelin.0.1. A..16eAtUD gluuer cne
Fifth Amendment. The Fifth Amendment to the United States Constitution,
as applied to the various states by the Fourteenth Amendment, guarantees
a citizen the right against self-incrimination in any criminal case.
While the Fifth Amendment right against self-incrimination ie clear, the
Secretary is not aware of any additional right that would guarantee that
Mr. Morgan be protected from presenting his defense in a civil hearing
before the school board.
The case of Cotter v. State Civil Service Commission, 6 P.W.C.T.
498 (1972) provides circumstances similar to the case before us. In
Cotter, the individual was charged with the sale of a stolen motor
vehicle. Mr. Cotter asked -for a continuance of his hearing before the.
State Civil Service Commission in order to decide whether his Fifth
Amendment rights in the subsequent criminal action would be waived by
testifying in his own defense in the employment hearing. The guideline
set in Cotter was whether the continuance in the civil hearing regarding
189
1.9
Mk. Cotter's continued employment would be "in the furtherance of_
justice." As the Appellee in the case before us states in his argument,
application of this guideline involves the balancing of individual
rights against societal rights in each particular case.
Although the court did grantia brief continuance in Cotter, the
court said:
"...we are not holding that the Commission was bound tocontinue its Hearing until the criminal charges filed againstthe Appellant had been finally disposed of by the criminalcourts."
In attempting to balance the prejudice that would be suffered in the
instant case, it is clear that the school board had no choice but to
deny the request for a continuance pending criminal disposition. We
must be cognizant of the fact that a school district has an obligation
to foster the well-being of its stldents. The case before us is a very.
sensitive situation, involving the rights of an individual not yet tried
and found guilty of any offense. However, we must be aware that
in today's society must serve as role models for their students.
school district must weigh the teacher's position as a model for
against the teacher's individual rights outside that role model.
teachers
The
students
In the
ease before us, not only was Appellant charged with criminal conduct, he
was charged with conduct which involved. threatened damage to his students.
It is our opinion that in balancing the interests of Appellant and of
his students, the school district properly decided to dismiss Appellant.
There was also some discussion on the part of the Appellant that
the District Attorney Might seize the transcript of his dismissal hearing
and subsequently use it against Appellant. In Garrity v. New Jersey,
38S.U.S. 493 (1967), the_Supreme Court of the United States essentially
19o19d
decided that issue. The Supreme Court in Garritrconcluded that the
giving of testimony before a private tribunal under threat of loss of
employment does not constitute a waiver of Fifth Amendment-rights
(emphasis added). In the 'case before us, the hearing was private at the
Appellant's request and under the authority of the Public School Code.
It was made clear to all participants that the hearing was not to be
discussed outside the forum of the tr-ibunal:'- Consequently, as the
School Board has argued, Appellant would not in his civil hearing have
revealed his criminal defense to the District Attorney. The Garrity
case makes it clear that any testimony given would not waive Appellant's
Fifth Amendment rights in the subsequent criminal proceedings.
Accordingly, we make the following:
191 197
ORDER
AND NOW, this 7th day of December, 1979, it is hereby ordered and
decreed that the Appeal of Roger Morgan be rnd hereby is dismissed.
Robert G. ScanlonSecretary of Edudation
198
192
COMMONWEALTH CF PENNSYLVANIA
Department of Education
Carroll Bittner,
Appellant : Teacher Tenure Appeal No. 13-79
v.
Jershey Shore Area SchoolDistrict,
Appellee
OPINION
Carroll Bittner, Appellant herein, challenges the computa-
tion by the Jershey Shore Area School District of the back pay
provision in the Order of the Secretary of Education in her
Teacher Tenure Appeal No. 234, which Order was affirmed by the
Pennsylvania Supreme Court.
The essential facts in this proceeding are not at issue.
At a hearing before the Secretary's hearing examiner_held October
1, 1981, the parties stipulated as follows CTr.
I. Mrs. Bittner was terminated by the Jersey Shore Area
School District at the start of the 1973-1974 school year. Tr. 3,
4.
193 193
2. At that time, the District denied Mrs. Bittner a hear-
ing; and she appealed to the Secretary of Education. Tr. 4.
3. Subsequently, on December 3, 1973, Mrs. Bittner began
to serve as a member of the Board of-Directors of the Jersey
Shore Area School District and has continued to serve in that
capacity at all times relevant to this case. Tr. 4.
4 4. Following the hearing on June 20, 1974, before the Secre-
tary of Education, the Secretary ordered that Mrs. Bittner's
appeal be sustained and that the District reinstate her without
loss of pay. Teacher Tenure Appeal Number 234 issued
July 25, 1975. Tr. 4.
5. The District appealed the Secretary's decision to the
Commonwealth Court, which reversed the Secretary's decision on
March 9, 1976. Department of Education v. Jersey Shore Area
School District, 23 Pa. Commonwealth Ct. 624, 353 A.2d 91 (1976).
Tr. 4.
6. Mrs. Bittner appealed that decision to the Pefinsylvania
Supreme Court, which reversed the Commonwealth Court, and ordered
that the Secretary of Education's order be reinstated. ,Common-
wealth Department of Education v. Jerse Shore Area School
District, 481 Pa. 349, 392 A.2d 1331 (1978).
7. The Supreme Court's decision was handed down October
5, 1978. ibid. Tr. 4.
194, 2UL)
8. After some vacillation and after being offered a teach-
ing position by the Board, Mrs. Bittner elected to resign her
status as a tenured professional employee effective,October
1978, the date of the Supreme Court's decision. Tr. 4. Joint
Exhibit No. 7-10.
9. According to a letter of December 14, 1978, Jack G.
Wolf, Secretary and Business Manager of the District, advised
Mr. Carpenter, the District Solicitor, that if backpay were
awarded for the period September 4, 1973, to October 5, 1978,
Mrs. Bittner's entitlement would be g;50,646.20. Tr. 4-5. Joint
Exhibit No. 12.
. 0, Mr. Wolf further stated that if backpay is only calcu-
lated from September 4, 1973, to December 3, 1973, the date that
Mrs. Bittner became a School Board member, then her entitlement
would be only $2,727.38. Tr. 5. Joint Exhibit No. 12.
11. By resolution of August 31, 1978, the Board tendered
to Mrs. Bittner the latter sum, $2,727.38, together with in-
terest thereon at the rate of 6 percent per annum. Tr. 5. Joint
Exhibit No. 11.
12.anwhile, on August 15, 1979, Mrs. Bittner filed an
application for relief in the Pennsylvania Supreme Court seeking
t3 compel the District to pay her back wages. Tr. 5.
13. In its answer, the District raised the defense that
Mrs. Bittner was not entitled to backpay for the period of time
that she sat on the Board. Tr. 5.
195
14. In a per curiam order of September 12, 1979, t'-e Court
referred this matter back to the Secretary of Education to deter-
mine the School District's compliance with his earlier order of
June 25, 1975. Tr. 4.
15. In its brief of April 1980 to the Secretary, the Dis-
trict proposed that Mrs. Bittner submit a sworn statement of her
earnings to be considered in abatement of loss of pay. Tr. 6.
* * *
In addition to the above stipulated facts, we find the
following:
16. By affidavit of July 10, 1981, Ms. Bittn4r, swore to
the following weekday, daytime earnings:
A. September 4, 1973-December 31 1973 - $605.32
B. December 4, 1973-October 5, 1978 - $10,444.54
and
C. Unemployment Compensation (1976 and 1977) - $2,177.50
She further swore that she had earned "nominal sums" as
a hairdresser on Friday evenings and Saturday mornings.
17. On October 1, 1981, at ty request of the District,
a hearing was held before the Secretary's hearing examiner pri-
marily to cross-examine Ms. Bittner concerning her earnings and
for the purpose of oral argument. Tr. 6. Testimony was also taken
regarding whether Ms. Bittner had intended to run for the School
Board prior to her termination ac a teacher. Tr. 7.
196 2 u2,
18. Ms. Bittner's testimony concerning her earnings, in
support Of her affidavit, was credible, reasonable and consis-
tent, pnd,,ihere being no information in the record to the con-
trary, we accep' her affidavit as accurate and complete.
19. It is uncler from the record as to which employment
of Ms;'. Bittner gave rise to her receipt of unemployment compensa-
tion..
20. Ms. Bittner's testimony that she did not decide to run
for the School Board until after her teaching position was termi-
nated was entirely credible, and, there being no evidence to the
contrary, we accept her statements as true. Tr. 29-31.
ti
DISCUSSION
This remand raises two issues*:
I. Is Mrs. Bittner entitled to back pay for the period of
time during which le served as a member of the Board of School
DirectOrs?
II. Ia the Board entitled to deduct from her back pay award
her earnings during the period that she was unlawfully terminated?
I. Board Membership As a Bar to Back Pay
The District asserts that it is only required, indeed
allowed, to pay Mrs. Bittner back wages for the period September
4, 1973, to December 3, 1973, which it calculates to be $2,727.38
plus interest. It asserts that it cannot pay back wages from the
period December 3, 1973, to October 5, 1978 (the effective date
of. Mrs. Bittner's resignation as a professional employee) because
she was a school board member during that period. Mrs. Bittner
asserts that she is entitled to back pay for the period September
4, 1973, to October 5, 1978, which the District calculates to
be $50,646.20, plus interest. Mrs. Bittner has not chalienged the
accuracy of the two calculations.
"%c
*At the hearing on remand before the Secretary of Education'shearing examiner, Mrs. Bittner dropped a third potential issue:claim to attorney's fees in the instant proceeding. Tr. 26, 27.
298 Ly;
The istrict relies upon Section 322 of the Public School
Code of 1949, the Act of March 10, 1949, P.L. 30, as amended.
Section 322 provides that any "teacher, or employe of any school
district shall not be eligible as a school director in this
Commonwealth . . ." 24 P.S. §3-322. Although not cited by the
District, Section 324 is also relevant. It provides that "No
/school-director shall, durin the term for which he was elected.
or appointed . . . be empl yed in any capacity by the school dis-
trict'in which he is elected or appointed, or receive from such
school district any pay for services rendered to the district
except as provided in this act. . ."24 P.S. §3-324.
In response, Mrs. Bittner asserts first that this defense
is barred by the doctrine of res judicata, and second that the
defense is wrong as a matter of law.
A. Res Judicata
Mrs. Bittner was sworn in as a school director of the Dis-
trict on December 3, 1973. The original hearing on her Teacher
Tenure Appeal No. 234, was held before the Secretary of Education
on June 20, 1974, half a year later. The District did not raise
her membership on the Board as a defense at said hearing or at
any stage of that appeal through the courts.
199 2 5
In her brief, Mrs. Bittner asserts the following:
Pennsylvania law is clear that "the final determinationby a court of competent jurisdiction settles not only thedefenses actually raised, but also those which might havebeen raised." Duquesne Light Company v. Pittsburgh Railway
1,Company, 413 Pa. 1 194 A.2d 319, 321 (1963). Whatthe Supreme Court recognized as the basiS for the doctrineof res judicata in Duquesne is equally applicable in theinstant case:
'The res iudicata doctrine is designed to prevent the verysituation wh;:ch would result if appellant's second petitionwere granted, namely, the injection of a new issue intothe case after almost four years of litigation. Id.(See also Jenkins v. Jenkins, Pa. Superior 371A.2d 925, 929 (1977); Keystone Building Corporation v.Lincoln Savings and Loan Association, Pa. Superior ,
335 A.2d 817, 819 (1975)).'
All of the elements of res judicata are present in thiscase, to wit, identity of the thing sued for; identity ofthe cause of action; identity of the persons and partiesto the action; identity of quality of the persons for orwhom the claim was made. London v. City of Philadelphia,412 Pa. 496, 194 A.2d 91, 903 (1963). The parties tothe original litigation that terminated in the Supreme-Court are the same as the parties to the present litiga-tion. The cause of action is identical; the quality of theparties is identical, and the thing sued for is identical,to wit, reinstatement and badk salary. As a result, theSchool District is now barred by the doctrine of res judi-cata from raising as a defense to an award of back payCarroll Bittner's membership on the school board. The Dis-trict could have raised this defense in the original pro-ceedings and elected not to do so. As the Supreme Courtindicated in Duquesne, it cannot now raise the defgpse orattempt to raise the defense after more than five yearsof litigation.
Brief of Carroll Bittner pp. 3-4.
In response, the District in its brief asserts:
The only time this factor could have been presented intothe record was at the original Department of Education hear-ing. At no further stage of the proceedings, i.e. Appealto the Commonwealth Court and the subsequent Appeal to the
2u
200
Supreme Cvirt, was this factor able to be placed in therecord.
Brief of Jersey Shore Area School District, p. 1.
Obviously, this response begs the question. The District
'asserts no reason why Mrs. Bittner's school board membership
could not have been raised by it at her original hearing in June
1974. Having failed to raise this issue in June 1974, the Dis-
trict clearly is barred by the doctrine of res judicata from
injecting it into the proceedings in August 1979, over five years
later. The purpose of thJ doctrine of res judicata is precisely
to bar this type of long delayed introduction of new issues into
cases already litigated,in order that there will be some finality
to the judicial process.
Accordingly, it is our opinion that Mrs. Bittner is
entitled to back pay for the period September 3, 1973 ,to October
5, 1978, specifically including all that time during which she
served as a board member.
B. Merits
However, in the interest of administrative and judicial
economy, and to avoid a third hearing before the Secretary, we
will express our opinion as to whether Mrs. Bittner's board
membership would have precluded an award of back pay if that
issue had been properly raised by the District at the first
hearing.
201 2u7
This question appears to be a matter of-,first impression
in the Commonwealth, and neither side has cited authority direct-
ly on point. Nevertheless, there is guidance in a number of
judicial opinions.
In a case decided under the School Code of 1911, the Penn-
sylvania Supreme Court held that an individual was not disquali-
fied from being a school board member because either he had an
outstanding claim for money against the district or vice versa.
Zeigler's Appeal, 238 Pa., 280 (1937). Thus, it cannot be claimed
that there was anything wrongful or improper in Mrs. Bittner
running for and taking her position on the school board because
of her claim against the district. To the contrary, it was the
district's prior action in terminating Mrs. Bittner that was held
by the Pennsylvania Supreme Court to have been improper. Common-
wealth, Department of Education v. Jersey Shore Area School
District, 481 Pa. 349, 392 A.2d 1331 (1978). Further, in that
decision, the Court cited with approval the following language
from Mullen v. DuBois Area School District, 436 Pa. 211, 217, 259
A.2d 877, 880-81 (1969):
The burden of complying with the statute rests with theschool boards; should they fail to conduct their businessas required, the consequences ought to lie at their door,not at the door of their victims. They must not be per-mitted to advantage themselves of their own failures tothe detriment of their employes.
481 Pa. 356, 366, 392 A.2d 1331, 1336.
Accordingly, we see no reason why the consequences of the
board's illegal termination of Mrs. Bittner as a professional
employe should not rest with the Board, and no reason why Mrs.
202 2 1j3
Bittner's lawful election to the Board should be at the price.
of her lawful claim to back pay.
The Pennsylvania Supreme Court has dealt with the analogous
situation in which a lawyer was elected to the Court of Common
Pleas, could not take office when his term was to have commenced
because of a challenge to his election and continued to practice
law un he actually took the oath of office some time later.
In Reed v. Sloan, 475 Pa. 570, 381 A.2d 421 (1977), the Court
held that Judge Reed was entitled to back pay for the full term
of his office even though he could not have practiced law had
he been sworn in when his term was supposed to commence. The
Court noted:
The fundamental fallacy in appellant's position is the fail-ure to distinguish between the current holding of two incom-patible positions and the right to payment of salary foran office where there has been an involuntary deferredassumption of that position. The evil sought to be avoidedby the incompatibility provisions is the improper perfor-mance of the duties of the office which might be inspiredby the holding of an incompatible position. The fact thatthe person derives income from the incompatible positionis only significant in that it might provide the incentiveto improperly discharge the responsibilities of the publicoffice. In the context of a deferred assumption of officeit is tberefore clear that the receipt of salary duringthe period during which the office_lholder was preventedfrom discharging the duties of the office could in no wayoccasion the harm sought to be avoided by our doctrine ofincompatible offices.
Pa. at 577-8, A.2d at 424-5.
The reasoning;; of the Court in Redd v. 'Sloan applies direct-
ly to Mrs. Bittner's situatio ---JuSt as the Supreme Court found
nothing improper in midge Reed practicing law while awaiting a
decision on his election to the bench, we perceive nothing wrong
203211
with Mrs. Bittner sitting on the Board while awaiting a decision
on her teaching status.* Just as the Court found Judge Reed en-
titled to back pay for the period that he practiced law while
involuntarily prevented from serving as a judge, we find Mrs.
Rittner entitled to back pay for the period that she sat on the
Board while involuntarily and improperly prevented from serving
as a teacher. Ergo, even had her board membership been properly
raised, we would nevertheless conclude that she is entitled to
back pay for the period September 4, 1973, through October 5,
1978.
II. Set-Off for Earnihgs
A number of decisions of the Commonwealth Court indicate
that a district is entitled to a setoff against his back pay
award of a teacher's earnings during the time of an improper sus-
pension. Eastern York School District v. Long, 46 Pa. Common-
wealth Ct. 209, 407 A.2d 69 (1979), Cigarski v. Lake Lehman
School District, 46 Pa. Commonwealth Ct. 297, 407 A.2d .460
(1979), Shearer v. Secretary of Education, 57 Pa. Commonwealth
Ct. 266, 424 A.2d 633 (1981). Shearer further notes:
However, income earned by petitioner from jobs held onnights and weekends should not be set off against the backpay award. Petitioner could have held those positions con-currently with his teaching job; thus-, they should not beheld to diminish further his recompense for wrongful dis-charge. _
Pa. Commonwealth Ct. at 270, A.2d at 635.
*It has never been alleged that Mrs. Bittner has ever participat-ed as a Board member in anything having to do .with her claim toher teaching position.
204
Secretary Pittenger's original Order in this case decreed
"that the-Appeal of Carroll Bittner be sustained and the Board
of Directors of the Jersey Shore Area School District reinstate
her without loss of pay and with the status of professional em-
ployee." Teacher Tenure Appeal No. 234, June 25, 1975. This Order
was specifically reinstated by the Pennsylvania Supreme Court.
481 Pa. 356, 367, 392 A.2d 1331, 1337 (1978). The Commonwealth
Court has clearly indicated that an order of reinstatement "with-
out loss of pay" is not inconsistent with a right to set off
earnings. Eastern York School District v. Long, supra, Pa. Common-
wealth Ct. at 213,' A.2d at 70-71.
Since Secretary Pittenger's reinstated Order implied a
right to set off, and since there is a clear right to set off,
we hold that the District is entitled to set off Mrs. Bittner's
weekday earnings. We note that Mrs. Bittner has not raised the
issue of res udicata with regard to set-oi ince set-off was
encompassed within the Secretary's original 'r, res judicata
would not appear to bar it As noted, her ever., and weekend
earnings are not set off against her backeiward. Furthermore,
while the District may set off her unemployment compensation, it
must comply with Sections 704 and 705 of the Unemployment Compen-
sation Law, the Act of December 5, 1976, Second.Ex.Sess., P.L.
(1937) 2897, as amended, added by Section 8 of the Act of July
7, 1977, P.L. 41, 43 P.S. §864,865. Shearer v. Commonwealth,
205 21i
Secretary of Education_,_ id., 424 A.2d at 635.
Accordingly, we make the following:
ORDER
AND NOW, this 12 day of February , 1982, the
Appeal of Carroll Bittner is sustained and our Order of July 25,
1975, in Teacher Tenure Appeal 234 is clarified, to wit:
The Jersey Shore Area School District shall pay Carroll
Bittner back pay in the amount of $50,646.20 with interest at
the rate of six per cent (6%) per annum, less:
(a) the amount of $11,049.86 representing actual weekday
wages from other sources, and
(b) the amount of $2,177.50 representing unemployment
compensation benefits, which amount the District shall
pay into the Unemployment Compensation Fund, per 43 P.S. §864.
c,_ LROBERT G. SCANLONSecretary of Education
AL
206
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
LEWIS ZIEGLER,Appellant
v.
RIDGWAY AREA SCHOOL DISTRICT,Appellee
OPINION
Teacher Tenure AppealNo. 15-79
Lewis Ziegler, Appellant herein, has appealed from a decision by
the Ridgway Area School. District dismissing him as a professional employee
pursuant to the district's mandatory retirement policy.
FINDINGS OF FACT
1. Lewis Ziegler is a professional employee of the Ridgway
Area School District who has been employed since December, 1945..
music teacher.
2. On March 13, 1978, the Ridgway Area Board of School Directors
(hereinafter referred to as the Board) adopted_a retirement policy,
which states in part:
RETIREMENT - Employees of the Ridgway Area School Districtshall retire at age 65 (70, effective January 1, 1979). If anemployee shall become 65 years of age (70 years of age January1, 1979) prior to August 15th of any calendar year, the employeeshall retire at the close of the preceding school term. Ifthe employee shall become 65 years of age (70 years of ageJanuary 1, 1979) on or after August 15th of any calendar year,the employee shall continue in his/her position until theclose of the following school term.
3. Lewis Ziegler reached the age of sixty-five (65) on November
11, 1978.
4. On May 25, 1979, Lewis Ziegler was informed by letter from the
superintendent of the school district that Mr. Ziegler had reached the
mandatory retirement age, and therefore his retirement would become
effective at the close of the 1978-79 school year.
207
213
5. On June 1, 1979, Lewis Ziegler made a written request for a
dismissal hearing before the Board.
6. On July 19, 1979 the hearing was held on Lewis Ziegler's
dismissal.
7. On August 13, 1979, the Board sustained the dismissal of Lewis
Ziegler pursuant to the school district's retirement policy.
8. On September 2, 1979, Lewis Ziegler received notification by
mail of the action taken by the Board. Such notification was not sent
by registered mail.
9. On October 1, 1979, an Appeal from the Board's decision was
mailed to the Secretary of Education.
10. On October 4, 1979, the Appeal of Lewis Ziegler was received
by the Secretary of Education.
11. On October 25, 1979, the school district filed a Motion to
Strike the Appeal of Lewis Ziegler, alleging that the Appeal was untimely
filed.
12. On November 13, 1979, Appellant filed an Answer to Appellee's
Motion to. Strike.
13. On November 15, 1979, a hearing on this Appeal was held before
a hearing examiner appointed by the Secretary of Education.
DISCUSSION
rhat the hearing before the Ridgway Area
Board of School Directors failed to comply with procedural due process
as guaranteed by the United States Constitution and with the Equal
Protectic Clause of the United States Constitution. The Ippel.lant
further contends that the action taken by the Board-is in violation of
the Age Discrimination in Employment Act, 29 U.S.C.§621 et seq.
Appellee contends that the Appeal should be dismissed for the
failure of the Appellant to file the Appeal within thirty (30) days
208
21
after being notified o e School Board's decision, pursuant to 24 P.S.
411-1131. Appellee also cntends that the Age Discrimination in Employment
Act (hereinafter referred to as the ADEA) does not apply to public
school teachers. Appellee further contends that even if the ADEA did
apply to teachers, Appellant's retirement was based upon a bona fide
pension plan applied uniformly to all employees. Finally, the Appellee
contends that the Secretary of Education lacks jurisdiction over this
Appeal. We hold that the Secretary of Education does lack jurisdiction
over this Appeal, consistent with our recent decision in Nary Card v.
Troy Area School District, Teacher Tenure Appeal 27-78.
As noted above, Appellant's arguments are based upon alleged violations
of the United States Constitution and the ADEA. The.Appellant did not
challenge the validity of Section 1122 of the Public School Code of
1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. 611-11,22.
Section 1122 expressly permits school districts to formulate mandatory
retirement policies. Section 1122 provides as follows:
The only valid causes for termination of a contract heretoforeor hereafter entered into with a professional employe shall beimmorality, incompetency, intemperance, cruelty, persistentnegligence, mental derangement, advocation of or participatingin un-American or subversive doctrines, persistent and willfulviolations of the school laws of this Commonwealth on the partof the professional employee: Provided, That boards of schooldirectors may terminate the service of any professional employewho has attained to the age of sixty-two except a professionalemploye who is a member of the old age and survivors insurancesystem pursuant to the provisions of the act, approved thefirst day of June, one thousand nine hundred fifty-six (PamphletLaws 1973). In such case the board may terminate the serviceof any such professional employe at the age of sixty-five orat the age at which the employe becomes eligible. to receivebenefits under the Federal Social Security Act.
Despite Appellant's failure to challenge Section 1122 of the School
Code, in order to sustain Appellant's claim the Secretary would have to
find Section 1122 to be unconstitutional or invalid because of it being
209
215
in conflict with the ADEA. The Secretary is without authority to make
that decision. Therefore, we find that the Secretary of Education lacks
jurisdiction over the App 1 of the Appellant.l
We also find it unnecessary to rule-on Appellee's Motion to Strike
Appellant's Appeal, alleging untimely filing on behalf of the Appellant,
for the following reasons.
According to the decision in Cary v. School District of Lower
Merlon, et al., 362 Pa. 310, 66 A.2d 762 (1949), the right to a dismissal
hearing before the school board aiises subsequent to the dismissal of a
professional employe by a school board for one of the reasons listed in
Section 1122 of the School Code. Those causes for termination entitling
a professional employe to a dismissal hearing are the following: immorality,
incompetency, intemperance, cruelty, persistent negligence, mental
derangement, or persistent and willful violation of the school laws of
the Commonwealth. The Pennsylvania Supreme Court held in Cary that,
with respect to the above listed causes fcr dismissal:
"Since charges of that nature are an attackon character or competency the law properlyprovides that in order to defend against themthe employe is entitled to a formal hearing,but such a hearing is not required bx theSchool Code where the employe's contract isterminated -in accordance with the provision forretirement on age. (Emphasis added.)
Id., 362 Pa. 310, 312-13, 66 A.2d 762, 763 (1949).
This conclusion appears to be consistent with federal law. The
Fourteenth Amendment's procedural protection of property is a safeguard
when a person has a right to and expectation of continued employment
Board of Regents v. Roth, 408 U.S. 566 (1972). Under f1122 of the
School Code and the Board's policy, no such right or expectation exists.
Therefore, no right to a dismissal hearing for this Board's mandatory
retirement policy exists in the state law under which the Secretary hasJ 2102 1
Authority to act.
Thus, without reaching the de sion as to whether or not there was
a violation of procedural due process in the hearing before the Ridgway
Area Board of School Directors, we find that pursuant to the School Code
Appellant was not initially entitled to a hearing and consequently is
not entitled to an appeal from that hearing under Section 1131 of the
School Code. Therefore, we may make no decision as to Appellant's
allegation of a denial of procedural due process.
Even if Section 1131 applied, the scope of review for Section 1131,
does not grant the Secretary the authority to declare Section 1122 to be
unconstitutional or invalid as being in conflict with the ADEA.
The (Secretary of Education) shall review the official transcriptof the record of the hearing before the board, and may hearand consider such additional testimony as he may deem advisableto enable him to make a proper order. At said hearing thelitigants shall have the right to be heard in person or bycounsel or both.
After hearing and argument and reviewing all the testimonyfiled or taken before him, the (Secretary of Education) shallenter such order, either affirming or reversing the action ofthe board of school directors, as to him appears just andproper." 24 P.S. § 11-1131. (Emphasis added.)
Thus, in his review of a board's action concerning a professional employee,
the Secretary of Education has been conferred with no statutory authority
to consider the constitutionality or the validity of a section of the
School Code. He has been given the authority to'reviewthe board's
action in dismissing under Section 1122, not to review the General
Assembly's action in legislating the statute. The Secretary has taken
the position that it would be presumptuous, as well as counter-productive,
to attack the constitutionality or validity of a statute which grants
him the authority to act:
"The consideration of the constitutionality of acts of assemblyis a function for the courts. The law does not give theSecretary of Education any authority,to adjudge an act ofassembly unconstitutional, and in the absence of any courtdecision on the point, it is our judgment that the presumption
211
2 1 ';1
of constitutionality pertains." Commonwealth v. Yerkes, 285Pa. 39 cited in Appeal of Watson, Supt. of Public InstructionOpinion No. 78 (1951).
See also Borough of Greentree v. Board of Property Assessments of Allegheny
County, 459 Fa. 268, 328 A.2d 819 (1974)t
Accordingly, we thereby make thejdllowing:
213
212
ORDER
AND NOW, this 19th day of September , 1980, the Appeal of Lewis
Ziegler from the dismissal by the Ridgway Area School District is hereby
dismissed.
Robert G, ScanlonSecretary of Education
213213
IN THE OFFICE OF THE SECRETARY OF EDUCATION
COMMONWEALTH OF PENNSYLVANIA
Michael Micklow,Appellant
v.
Fox Chapel Area SchoolDistrict,
Appellee
OPINION
Teacher-Tenure Appeal No. 16-79
Michael Micklow, Appellant herein, has appealed from the
decision of the Board of School Directors of the Fox Chapel Area
School District dismissing him as a professional employee on the
grounds of persistent and willful violation of the school laws
of the Commonwealth and persistent negligence.
FINDINGS OF FACT
1. Appellant, Michael Micklow, was first employed by
the Fox Chapel Area School District (hereinafter "the District")
as a temporary professional employee in January 1966. N.T. 326,
692'.
2. Micklow became a professional employee in January,
1968. N.T. 44.
3. Micklow filed a grievance against his principal,
Lucas Pavlovich, on May 25, 1979. Joint Exhibit 1.
4. A determination in favor of Principal Pavlovich was made
on the aforesaid grievance on June 15, 1979 by Dr. Jack Roush,
Assistant Superintendent. Joint Exhibit 1.
5. On June 11, 1979, the Board of School Directors of the
Fox Chapel A.sea School District (hereinafter "the Board") adopted
a resolution directing the District Superintendent to prepare
a written statement of charges for the proposed dismissal of
Micklow. Certified Resolution of June 11, 1979.
6. On June 13, 1979, the Board adopted a Statement of Charg-
es on the grounds of persistent and willful violation of the
school laws of the Commonwealth and persistent negligence. Admini-
stration Exhibit 1.
7. The specific factual allegations in the Statement of
charges read as follows:
(1) misuse of sick leave on JUne 14; 1978;
(2) failure to follow established procedures and securingapproval of principal prior to leaving building duringschool day on at least seven occasions during the 1978-79 school year and on several occasions during the1976-77 school year;
(3) failure to attend Open House on October 20, 1977;
(4) insubordination with respect to paragraphs (2) and (3)hereof;
(5) transporting students and encouraging parent carpoolsduring'the 1977-78 school year and on May 30, 1979;
215 22i
(6) failure to follow directives relating to the collectionof money from students on May 17, 1979, which resultedin loss of funds.
(7) making negative and unprofessional comments to elemen-tary school students during the 1977-78 school years;and
(8) making unprofessional and derogatory remarks in the pre-sence of students and parents concerning the principalduring the 1977-78 and 1978-79 school years and in priorschool years.
Administration Exhibit 1.
8. The charges and notice of hearing were properly served
on Micklow. N.T. 4.
9. The board held an extensive hearing on the charges in
eight sessions starting June 26, 1979 and finishing on August 2,
1979. N.T. 1, 758.
10. During the hearing, much cf. Dr. Pavlovich's testimony
involved or was supported by notes he had taken concerning
Micklow or notes from Micklow upon which he wrote comments which
were not made a part of Micklow's personnel file. Several of
these items were introduCed as administration exhibits.
11. When Micklow reviewed his personnel file in preparation
for the hearing, he was told of the existence of these additional
documents and they were delivered to him. N.T. 338-339.
216
Evidence was adduced as follows:
Charge No. 1
12. Micklow was absent from work on June 14, 1978, which
he reported as due-to personal illness. Administration Exhibit
7.
13. Another teacher, John Phillips, was absent the same day.
N.T. 53.
14. Emily Strohm, a former student, testified that the day
before-Micklow's absence in June 1978, she overheard Micklow and
Phillips arranging a golf date for the next day. N.T. 250-252.
15 Another student testified that she had overheard the golf
conversation, but did not know when the game was to.take place.
N.T. 40 -46.
16. Dr. Pavlovich testified that Micklow twice admitted to
him that he had gone golfing on June 14, 1978. N.T. 46, 147,
151.
17. Both Micklow and Phillips testified that they were not
golfing on June 14, 1978, and had never admitted that they had
been. N.T. 33, 35, 333, 334, 335.
18. Micklow did admit a previous incident in 1971 when he
put in for sick leave, but was discovered at a convention in
217
Atlantic City by Superintendent Burk. He characterized his re-
quest for sick leave as "accidental". N.T. 445.
19. There is substantial credible evidence that Micklow did
misuse sick leave to go golfing on June 14,.1978.
Charge No. 2
20. The hours at the Kern Elementary School, where Micklow
taught, were 8:30 a.m. - 4:00 p.m. N.T. 54.
21. According to Principal-Pavlovich, a teacher wishing to
leave early had to get his prior permission, then fill out a
three by five card for him to keep on file. N.T. 55, 155.
22. Dr. Pavlovich testified that Micklow left school early
without his prior permission on October 25, 1978, December 6,
1978, March 12, 1979, March 21, 1979 and April 25, 1979, and that
on these occasions Micklow simply left a 3 x 5 card and walked
out. N.T. 65, 66, 68, 69, 70, 71.
23. Dr. Pavlovich further testified that on May 25, 1979,
he posted a notice on the door of the teachers' room, specifi-
cally instructing all staff members not to request permission
(to leave early) to go to the bank that day. N.T. 76-77, Admini-
stration Exhibit 6.
24. Despite the posted notice, Micklow proceeded to fill
out a 3 x 5 card for leave and was told by Dr. Pavlovich of the
tia
21802
notice and that he could not leave early. Micklow stated that
he was going anyway, and he did so. N.T. 79-84. Administration
Exhibit 18.
25. At his hearing, Micklow admitted leaving early on
October 25, 1978 and December 6, 1978, and acknowledged writing
out the 3 x 5 cards for March 12, 1979, March 21, 1979, April
25, 1979. N.T. 345-349.
-26. Regarding May 25, 1979, Micklow acknowledged that Dr.
Pavlovich told him of the notice not to request early leave, told
him to go the bank at 3:30, told him not to leave early, and that
he nevertheless did leave early to go to the bank. N.T. 351- 356.
27. Micklow also acknowledged having left early on two occa-
sions during the 1976-77 school year. N.T. 361.
28. Micklow's main explanation is that as of October 1978,
Dr. Pavlovich did ,Iot require prior approval for an early leave.
N.T. 345.
29. Dr. Pavlovich's statement of his policy requiring his
prior permission to leave early was-verified by faculty members
Marge B. Ryznar, Jeanne Bodnar, Eileen Kunkle, Charles Ross,
Sandy Schaltenbrand and Dorothy Lavia: N.T. 266, 283, 284, 295,
649, 687-688, 744, 745.
219 223
30. There is substantial credible evidence that Micklow
failed to follow established pror.g.dures and secure approval prior
to leaving the building during the school day on several
occasions during the 1976-77 and 1978-79 school years.
Charge No. 3
31. Open house is a very significant event in the school
year and attendance of teachers is required in their collective
bargaining agreement. N,T. 10-13, 102-103. Administration Exhibit
2.
32. Although Micklow taught school on October 20, 1977, he
did not attend open house on that date. N.T. 104.
33. Dr. Pavlovich testified that Micklow neither sought his
prior permissicin nor even gave him advance notice that he would
not attend the open house. N.T. 105.
34. Micklow received a written reprimand for his failure to
attend the open house. N.T. 108. Administration Exhibit 27.
35. Micklow testified that he had obtained Dr. Pavlovich's
prior permission to be absent. N.T. 363-364.
36. Micklow also testified that he informed the other two
sixth grade teachers, Mr. Ross and Miss Eurik (now Mrs. Ryznar)
that he would not attend open house. N.T. 375.
220
29
37. Both Ross and Ryznar testified that Micklow had never
informed them that he would not attend open house. N.T. 644, 268.
38. There is substantial credible evidence that Micklow
failed to attend the October 20, 1977, open house without notice
or approval.
Charge No. 4
39. Findings of fact 18-Z7, supra, demonstrate insubordina-
tion in Micklow's repeated failure to obtain prior permission
for leaving early and failure to attend open house.
Charge No. 5
40. The District Collective Bargaining Agreement requires
advance approval of the principal or immediate supervisor for
a professional employee to drive students and further requires
all professional employees who drive their cars for school busi-
ness to have on file at the district administrative office a cer-
tificate of insurance of public liability and property damage.
N.T. 13, 14. Administation Exhibit 2.
41. Micklow did not have such a certificate of insurance
on file for the 1978-79 school year. N.T. 15.
42. On May 30, 1979, Dr. Pavlovich observed Micklow drive
out of the school parking lot with three students in his car.
Dr. Pavlovich testified that he had not given prior approval.
N.T. 91-92
221 2 27
43. Micklow admitted driving the three students in his car.
His testimony gave no indication of having sought prior approval,
nor did he indicate having a certificate of insurance on file.
N.T. 374-375.
44. Dr. Pavlovich distributed to all teacher two bulletins
discouraging car pools. The first stated, "The school district
Solicitor has indicated that we are not permitted to encourage
parents to use cars for field trips." The second stated, "Except
for kindergarten, when carpools are a necessity, children, espe-:,
cially those for whom a bus has been provided, should not be
transported to and from school by automobiles." N.T. 114, 115.
Administration Exhibit 28 and 29.
45. Micklow acknowledged scheduling a volleyball game at
another school for May 30, 1979, and setting it up so that he
and two parents would drive the students in carpools. N.T. 482-
488.
46. Although there is a dearth of evidence regarding the
1977-78 school year, there is substantial credible evidence that
Micklow transported students and encouraged parent carpools on
May 30, 1979.
Charge No. 6
47. Dr. Pavlovich established a system whereby he and a tic-
ket seller would visit each classroom to sell tickets to an out-
ing to Kennywood Amusement Park. N.T. 118-119. Administration
Exhibit 30.
48. On May 17, 1979, Micklow did not follow this procedure,
but rather collected his students ticket money himself in one
envelope which he took to the office. N.T. 119, 379.
49. This resulted in Dr. Pavlovich having to do extra work
and in Micklow's class coming up $4.00 short in tickets (which
were replaced). N.T. 119-120, 380.
50. There is substantial credible evidence that Micklow
failed to follow directives relating to the collection of money
from students on May 17, 1979, which resulted in a small amount
of student funds being lost.
Charge No. 7
51. One former student of Italian extraction testified that
Micklow called her a "dago" several times in front of other stu-
dents the preceding year, and that he done the same with another
student of Italian extraction. N.T. 38-40.
52. The student also testified that she had heard Micklow
mimick an Italian accent when addressing the other student in
the presence of the class. N.T. 39-40.
223tj
22j
53. Two former students testified that Micklow had referred
to them and other girls as "sex pots" during the 1977-78 school
year. N.T. 42, 253.
54. Dr. Pavlovich testified that Micklow referred to two
students as "groundhogs" in their presence in February 1979. N.T.
124-125.
55. There is substantial credible evidence that Micklow made
negative and unprofessional comments co elementary school stli-
dents during the 1977-78 and 1978-79 school years.
Charge No. 8
56. Dr. Pavlovich testified that Micklow ignored his instruc-
tions in June 1978 that all children were to be allowed to go
on a field trip, that instead Micklow sent five or six children
to the principal's office, that he called in Micklow and told
him that the children would go on the trip, that Micklow became
very irate and told him "To hell withyou" in front of parents,
children and the school secretary. N.T. 126-130.
57. Micklow acknowledged discussing this incident with
several parents. N.T. 503-506.
58. Dr. Pavlovich testified that Micklow repeatedly ignored
his directive of December 7, 1978, prohibiting students from us-
ing the pay phone to call home during the day and that Micklow
2 jj224
c,
4
told him in the presence of children that he should have more
to do than worry about children making phone calls, N.T. 98-99,
Administration Exhibit 24.
59. There is substantial credible evidence that Micklow made
unprofessional and derogatory remarks in the presence of students
and parents concerning the principal during the 1977-78 and 1978-
79 school Years.
* * *
60. On'Auclust 2, 1979, after closing statements by both
sides, the seven Board members present eaekr-stated that he or
she had been present at each hearing session or had read the
transcripts from any session missed. All seven voted to terminate
Micklow's contract for persistent and willful violation of the
school laws of Commonwealth of Pennsylvania. This constituted
a majority of the nine member Board. No findings of fact were
adopted. N.T. 815-818.
DISCUSSION
This Appeal presents nine issues:
A. Does the evidence support either of the statutory grounds
for dismissal?
225 23i
B. Was Micklow'S dismissal punishment for filing a union
grievance, and which side nas the burden of proof on this-ques-
tion?
C. Were Micklow's statutory, contractual or due process
rights violated by the principal's keeping material concerning
him in a file separate from his personnel file which material
was subsequently used to substantiate charges against him?
D. Were the rules on leaving school early vague and discrimi-
natorily enforced in violation of Micklow's statutory, due pro-
cess or equal protection rights?
E. Were Micklow's statutory or due process rights violated
by the failure of the school board to have two-thirds of its mca-
berg present for each hearing and to require a two-thirds vote
of members who had heard all the testimony?
F. Did the Board err in permitting hearsay testimony regard-
ing the golfing incident?
G. Is the Board estopped because of the lapse of time be-
tween the occurrence of some of the acts alleged in the charges
and the filing of those charges, or by Micklow's satisfactory
ratings?
H. Did the Board err in.failing to make findings of fact?
226 232
I. Did the Board err in failing to rule on various motions
and objections made by MiCklow's counsel?
A. DOES THE EVIDENCE SUPPORT THE STATUTORY GROUNDS FOR DIS-,
MISSAL?
As set forth in detail in the Findings of Fact, supra, the
evidence abundantly supports the charges qoainst Micklow relating
to the 1977-78 and 1978-79 school years. The incidents were
numerous and some of them very serious.
The incidents may be characterized as: repeated misuse of
leave or .bsence w. nout permission (the golf date on sick
leave, failure to attend open house, frequently leaving school
during the school day); failure to follow administrative direc-
tives (sick leave, early leave, open house, personally transport-
ing students, encouraging car pools, improperly collecting stu-
dent furds); verbal abuse of students ("dago", mimicked Italian
accent, "sex pot", "groundhogs"), and verbal abuse of principal
in front of students and parents.
Repeated incidents of abuse of leave warrant dismissal for
persistent and willful violation of the school laws. Lucciola'
v. Commonwealth of Pennsylvania, Sec. of Education, 25 Pa. Common-
wealth 419, 360 A.2d 310 (1976). Even a two day abuse of leave
227 2:33
may warrant dismissal for persistent negligence and immorality.
Board of Sch. Directors of Riverside Beaver County v. Howe, 37
Pa. Commonwealth Ct. 241, 389 A.2d 1214 (1978).
Failure to attend open house can also constitute negligence
and persistent and willfl violation of the school laws. Johnson
v. United School District, 201 Pa. Super 375, 191 A.2d 897
_(1963).
Failure to obey directiVes of the administration (regarding
leaving school early, personally transporting students without
a certificate of insurance, encouraging carpools, improperly
collecting student funds, etc.) also constitutes persistent and
willful violation of the school laws. Harris v. Commonwealth Sec.
of Education, 29 Pa. Commonwealth Ct. 625, 372 A.2d 953, 957,
(1977).,
Calling students derogatory names also warrants dismissal.
This was found to constitute cruelty and immorality in Bovino
v. Bd. of Directors of Indiana School District, 32 Pa. Common-
wealth Ct. 105, 377 A.2d 1284 (1977). In this regard we note that
the statement of charges need only set forth the acts warranting
dismissal, not the statutory grounds. See Lucciola v. Common-
wealth, Secretary of Education, supra.
228
234
Using abusive language to a superior and defying him in
front of students also will support dismissal for persistent and
willful violation of the school laws. Spano v. School District
of Brentwood, 12 Pa. Commonwealth Ct., 170, 316 A.2d 162 (1974).
In short, the charges and the evidence supporting them clear-
ly warrant dismissal. Indeed, several of the charges, taken by
themselves, would independently warrant dismissal.
B. RETALIATION FOR FILING GRIEVANCE
Appellant Micklow argues that his dismissal proceeding was
initiated in retaliation for filing a union grievance against
the principal and, further, that the District should have the
burden of proving that the dismissal was not retaliatory.
At the outset, we note that we do not believe that the Secre-
tary of Education has jurisdiction to rule on this retaliation
charge. There can be little question that instituting a dismissal
in retaliation for filing a grievance constitutes an unfair labor
practice as defined in the Public Employe Relations Act, Act of
July 23, 1970, P.L. 563, No. 195, 43 P.S. §1101.1201(a)(4). Under
that Act, the Pennsylvania Labor Relations Board has exclusive
power to prevent unfair labor practices. 43 P.S. §1101.1301.
22923j
The Pennsylvania Supreme Court has held?:
. . .'while this provision speaks directly to prevehting,as distinguished from determining the occurrence of an un-fair labor practice, we think the latter function is implici-tly embraced in the former.' Buildin Service EmployeesInternational Union, local 252 v. Sc esin er et a1., 440Pa. 2 A. 4, at (1'7 . T us!.1 a partydirectly seeks redress of conduct which ar;4able constitutesone of the unfair labor practices listed in Article XII (Sec-tion 1201) of the PERA, 43 -PAS. 51101.1201 (Supp. 1976),jurisdiction to determine whether an unfair labor` practicehas indeed occurred and, if so to prevent a party from con-tinuing the practice is in the PLRB, and nowhere else.(citations omitted) Hollinger v. Department of Public Wel-fare, 469 Pa. 358, 365 A.2d 1245 (1976).
In the interest of judicial and administrative economy,
however, we note briefly that we see no merit to either Micklow's
procedural or substantive arguments on this point.
Micklow cites no authority for his novel proposition that
the District has the initial burden of proof to show that the
dismissal proceedings were not retaliatory. Although the burden
is on the school board to prove the basis of charges on which it
has dismissed the employee, the burden then shifts to the employee
to show that the true reason was retaliation. It was not incumbent
upon the board to introduce into tr record a refutation of
Micklow's unsupported charge that the dismissal proceeding was
retaliatory. See Spruce Hill Township School District v. Bryner,
148 Pa. Super. 549, 25 A.2d 745 (1942).
Micklow argues that the burden of proof should lie with the
District because allegedly his counsel was prevented at the hear-
236230
ing from proving retaliation. Yet the very passages in the trans-
cript which Micklow cites in his brief indicate that, when asked,
his counsel repeatedly declined to indicate in any way that he
was bringing up the grievance in an effort to denionstrate retalia-
tion. The record simply does not support the contention that he
was prevented from going forward with his burden of proof.
Finally, the record contains no evidence of a retaliatory
firing. Rather, it reveals a teacher who increasingly engaged
in a course of conduct of negligence and open violation of school
policies, who was properly terminated at the end of the second
year of this pattern of misconduct.
The evidence of his wrongdoing is copious; his eleventh hour
filing of an unfounded grievance will not prevent his rightful
termination.
C. USE OF MATERIAL NOT KEPT IN PERSONNEL FILE
Micklow asserts that his contractual, statutory and due pro-
cess rights were violated by the principal's keeping material
concerning him in a file separate from his personnel file which
material was subsequently used to substantiate charges against
him. He cites no statute or due process case lawin support of
this proposition; nor do we find any statutory or due process
violation. In the latter regard, we note Micklow's admission that
23123?
he was given access to all these materials prior to the hearing.
See Finding of.Fact No. 11. It is also clear from the transcript
that Micklow was made aware of the principal's displeasure with
his acts at the time they occurred.
Micklow cites Article Four, Clause F of the Collective Bar-
gaining Agreement as the contractual basis of his argument. As
set forth in the preceding section of this Opinion, his proper
remedy was to grieve an unfair labor practice if he felt that
the Agreement was violated.
We certainly do not mean to approve the policy of an admini-
strator keeping derogatory material on a professional employee
other than in his personnel file. We see no legitimate purpose
served by this practice. Since, however, it violates no statutes,
nor constitutional rights, nor makes the dismissal arbitrary,
discriminatory or founded or improper considerations, it simply
does not rise to the level of vitiating the dismissal.
D. RULES ON LEAVING SCHOOL EARLY
Contrary to Micklow's testimony, the overwhelming evidence
presented by numerous faculty members was that Dr. Pavlovich's
policy was always that one needed his prior permission to leave
23,3
232
school early. See especially Finding of Fact No. 29. There is
simply no credible evidence that the policy was vague or discrimi-
natorily enforced. Its enforcement against Micklow was proper and
consistent.
E. BOARD ATTENDANCE AT HEARINGS
Micklow asserts that two-thirds of*all Board members had
to be present at each session, and also that he can only be termi-
nated by a two-thirds vote Of board members who were actually
present at all hearing sessions.
It is noteworthy that the record reveals no objection made
at any time by Micklow to the constitution of the sitting Board.
Moreover, there is no requirement that two-thirds of all Board
members be present at each session. Penzenstadler v. Avonworth
School District, 43 Pa. Commonwealth Ct. 571, 403 A.2d 621 (1979);
Boehm v. Bd. of Education of School District of Pittsburgh, 30 Pa.
Commonwealth Ct. 468,.373 A.2d 1372 (1977)..
Micklow likewise is in error in asserting a requirement that
all voting Board members had to be present at each session. Board
of Public Education of School District of Pittsbur n v. Pyle,
37 Pa. Commonwealth Ct. 386, 390 A.2d 904 (1978).
F. HEARSAY TESTIMONY
Micklow alleges that his hearing before the Board was defec-
tive because the Board admitted one statement of hearsay concern-
ing one of the charges against him during the course of testimony
233 233
that took 756 pages to transcribe. There was substantial evidence
in support of this charge (golfing on a sick leave day). See Find-
ings of Fact 12-19.
Even if Micklow is correct in categorizing the challenged
statement as hearsay, he is incorrect in his conclusion that it
was inadmissable:
It is well established that hearsay evidence supportive of-other evidence may be admitted in proceedings before admini-strative agencies (citation omitted) Bd. of Public Educationof School District of Pittsburgh v. Pyle, ibid.
G. ESTOPPEL
Mickow argues that the Board is estopped from dismissing
him because of the passage of time between the occurrence of some
of the acts alleged in the charges and the filing of the charges,
and because he always received satisfactory ratings.
The status of the doctrine of estoppel as it'applies to
school districts is somewhat unclear. In Grippo v. Dunmore School
Board, 27 Pa. Commonwealth Ct. 507, 765 A.2d 678 (1976) it was
held that a district is not estopped from defending against a
contract because it made payments under the contract. Subsequent-
ly, the Pennsylvania Supreme Court at least limited the ability
of governmental units to avoid estoppel in Commonwealth Dept.
of Public Welfare v. UEC, Inc., 483 Pa. 503, 397 A.2d 779 (1979).
The Court did require that "all of the traditional elements of
estoppel have otherwise been established".
Micklow neither pleads detrimental reliance in his Appeal,
nor do the facts indicate that such reliance would have been
reasonable and justified. Furthermore, in light of his violations
of written directives, direct orders, and provisions in the
collective bargaining agreement, he cannot be heard to say that
he lacked knowledge or the means of knowledge of the facts. In
short, his pleadings and the record simply fail to establish the
elements of estoppel. See Cheltenham National Bank
230 Pa. Super. 498, 326 A.2d 557, 560 (1974).
v. Snelling,
We note that almost all of the allegations concerning Mick-
low arose out of the school year just ended and the preceding
one. It is not unusual for a district to give a professional em-
ployee the benefit of the doubt after one deficient school year
that he will improve in the next. Indeed in incompetency dis-
missals, where the district only performs yearly evaluations,
the professional employee always is given, by law, a.second
school year to correct the problem.
We also note that, as established by Section 1123 of the
Public .5,2hool Code, the rating system is designed primarily to
rate a teacher's competency or incompetency. Micklow was not ter-
minated for incompetency. Hence his satisfactory ratings are
irrelevant to the current proceedings.
23524i
H. LACK OF FINDINGS OF FACT
Micklow alleges reversible error in the Board's failure to
adopt findings of fact. Although such findings would have certain-
ly been helpful to all parties on appeal and the Secretary of
Education, it has been repeatedly held that school boards haVe
no legal obligation to make them. Penn-Delco School District v.
Urso, 33 Pa. Commonwealth Ct. 501, 382 A.2d 162 (1978), Grant
v. Board of School Directors, 43 Pa. Commonwealth Ct. 556, 403
A.2d 157 (1979).
I. FAILURE OF BOARD TO RULE ON MOTIONS AND OBJECTIONS.
Micklow asserted in his Petition of A peal that the Board
erred in not ruling on various motions or objections during the
hearing, and that therefore he does not know on what basis the
Borxd reached its decision. He does not identify in any way the
motions or objections he made, upon which the Board did not
rule, to his alleged prejudice, He does not cite and authority
for the proposition that the Board must rule on all motions or
objections, nor are we aware of any. In light of the copious
testimony against him from numerous sources, we find it rather
disingenuous for Micklow to suggest that he does not know the
basis for his dismissal.
Accordingly, we make the following:
ORDER
AND NOW, this 2nd day of October , 1981, it is hereby Or-*
dered and Decreed that the decision of the School Board of the
Fox Chapel Area School District dismissing Appellant on the
grourids of persistent and willful violation of the school laws
of the Commonwealth and persistent ne ligence be sustained.
R bert G. ScanlonSecretary of Education
RUTH S. GRANT,
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
Appellant
v.
BOARD OF EDUCATION OFCENTENNIAL SCHOOL DISTRICT,
Appellee
Teacher Tenure AppealNo. 17-79
OPINION
This appeal has been remanded to the Secretary of Education from the
Commonwealth Court in an order vacating the Secretary's opinion issued
July 25, 1978. The Commonwealth Court remanded this case Lo the
Secretary'of Education for an adjudication, including.Findings of Fact
consistent with their opinion.
FINDINGS OF FACT
1. Ruth S. Grant, Appellant, is a professional employee. She is a
certified guidance counselor and-ichool psychologist. She worked as
a guidance counsels T-In the Hamburg School District, Hamburg,
Pennsylvania, for the 1961-62 school year. She then worked for four
years in the Conrad Weiser-Area Schol-ifilbbesonin, PIG She then
accepted an internship in the Wernersville State Hospital in the
summer of 1966 and, subsequently, worked there as a staff
psychologist. In March 1972, Appellant began her employment in
Centennial School District as a school psychologist. She also
worked as a teacher in the evening adult education program at the
district. (N.T. 357a, 361a - 365a, 28a].
2. The Centennial School District is a large school district located in
Pt
Bucks County, with an nrollment of over 1,400 students and a staff
of approximately 800 ofessional employees. During the 1974-75
school year, the school district's Office of Pupil Personnel
Services had a staff consisting of six psychologists, including
Appellant. [N.T. 8a - 10a].
3. On June 13, 1975, Appellant was' informed by her supervisor, Dr. N.M.
Andrews, that she would be given an unsatisfactory rating. Although'
Dr. Andrews had mentioned to Appellant certain concernscibnut her
work in previous discussions, this was the first notice I that her
work was considered to be unsatisfactory. [N.T. 466a1.
4. On June 24, 1975, Appellant was told by Dr. Everett A. McDonald,
Jr., Superintendent of Schools, that she could resign or have
charges for dismissal preferred against her. Appellant declined to
resign. [N.T. 16a - 18a].
5. On July 11, 1975, Dr. McDonald met with Appellant and gave her aLp
unsatisfactory rating on the standard state form, DEBE 333.
Attached to the rating was an anecdotal record prepared by Dr.
Andrews, which was dated July 8, 1975. [N.T. 20a).
6. The unsatisfactory rating Appellant received on July 11, 1975, wa3
the only rating she had received during the course of her cmploymer.t
in the Centennial School District. [LT. 39a).
7. Appellant's supervisor, Dr. Andrews, was first employed by the
Centennial School District on December 2, 1974, as Supervisor of
Special Education and Special Services. She was certified at that
239
243'
lime as a,schooi nurse, school psychologist and guidance counselor.
In June 1975, based on application materials submitted in May 1975,
she was issued the following supervisory certificates: .Supervisor
of School Health Services, Supervisor of Pupil Personnel Services,
Supervisor of School Psychological Services, and Supervisor of
School Guidance Services.
8. ny letter dated August 1, 1975, Appellant was informed that charges
for her dismissal had been brought and thaza hearin&on the charges
would be held August 12, 1975. \The'Statement of Charges was signed
by the President and attested to by the Secretary Of,the Hoard of
Directors of the Centennial School District (hereinafter School
Board). Appellant was charged with immorality, incompetency,
persistent negligence, persistent and willful violation of the
school laws and intemperance: Under. each charge were a number of
counts,, some of the counts related t..o more than one charge. [N.T.
501a].
9. hearings on the charges were held before the School Board on Auguit
12 and 20, 1975, at which evidence was presented regarding
Appellant's poor performance as a psychologist. [N.T. 76a, 90a -
95a, 106a - 112a, 122a - 125a, 428a, 130a - 135a, 155a].
10. On August 26, 1975, the School Board met and voted on the charges as
follows:
Immorality: 1 Aye, 7 Nays
Incompetency: 7 Ayes, 1 Nay
Persistent Negligence: 3 Ayes, 5 Nays
Persistent and willful violation of school laws: 3 Ayes, 5 Nays
Intemperance: Aye, 6 Nays,
Because only the charge of incompetency had. been sustained, the
Board thew voted seven to one to dismiss Appellant for incompetency.
Notice of the Board's decision was sent to Appellant by registered
mail the following day. [N.T. 506a, 507a].
11. On September 24, 1975, Appellant's Pet.ition of Appeal was filed in
the Office of the Secretary of Education. A hearing on the appeal
was held Octo')zr 31, 1915.
12. On July 6, 1976, the Secretary of Education (hereinafter Secretary)
issued an order and adjudication sustaining the appeal. The solo,
basis of the Secretary's decision was that the dismissal of
Appellant was improper because she received only one unsatisfactory
rating during the course of her employment with the Centennial
School District, notwithstanding that the Department ut Education
(hereinafter Departme-Lt) required that two unsatisfactory ratings
must precede a professional employee's dismissal for incompetency.
13. The School Board took a timely appeal of the Secretary's order to
the Commonwealth Court (No. 1319 C.D. 1976), alleging interalia that
said order was improper because the Department's policy upon which
it was based had not been promulgated consistent with the
requirements of the Commonwealth Document Law, Act of July 31, 1968,
P.L. 769 as amended, 45 P.S. §1101 et. seq., and was, therefore, not
binding on the School Board.
14. The Department responded, arguing that Lhe Secretary's decision had
been proper. Appellant intervened arguing on the merits of her
initial appeal to the Department, that she had received only one
unsatisfactory rating prior to her dismissal for incompetency.
24,'24..
15. On August 9, 1977, the Commonwealth Court held that the Secretary's
order of July 6, 1976, was an error of law since the Department's
policy that two unsatisfactory ratings must precede a teacher's
dismissal for incompetency had not been promulgated as required by
Sections 207 and 208 of the Commonwealth Documents Law, 45
P.S.§§207, 208. Additionally, the court held that because the
Secretary did not decide the merits of the School Board's actions,
'rhe matter would be remanded for a decision on the merits.
. On July 25, 1978, the Secretary of Education issued an Opinion and
Order vacating the Opinion and Order of the Secretary of Education
dated July 6, 1976, No. 274 and upholding the decision of the Board
of School Directors of the Centennial School District, Bucks County,
dated August 27, 1975, dismissing Appellant.
17. Appellant timely filed an appeal of the July 25, 1978 order of the
Secretary of Education with the Commonwealth Court. Appellant made
three points in this further appeal. First, she contended that the
Secretary abused her discretion in declining to provide a further
hearing in which Appellant could present evidence as requested.
Second, AppAlant complained that the unsatisfactory rating given
her shortly before the charges which led to her dismissal should
have been disregarded with the result that she could not be held to
have been lawfully u_smissed. Appellant asserted that it was an
abuse of the Secretary's iscretion or an error of law for the
Secretary to find against Appellant and uphold the School District's
dismissal of Appellant in view of the expression by the predecessor
Secretary of Education in his decision made two years earlier that
the same rating lacked integrity. Third, Appellant complained that
24 s;
242
the Secretary of Education misconceived her function in that instead
,of making Findings of Fact and adjudicating the matter on the merits
as were proper, she reviewed the record to see whether it contained
substantial evidence supporting the School Board's conclusion that
'AppeIlant was an incompetent professional employee.
18. The Commonweal..11 Court found that Appellant's third point was of
merit in that the record as submitted to the Commonwealth Court was
without findings of fact on the merits by either the School Board or
the Secretary of Education.
19: The Commonwealth Court stated that it was unable to review matters
coming to it from an administrative agency if there are no findings
of fact on the merits. The Court held that the Secretary of
Education as the ultimate fact finder in cases of this nature, must
issue findings of fact on theremaining matter at issue:
Appellant's alleged incompetency. The Commonwealth Court order,
dated June 27, 1979, vacated the Secretary of Education's opinion of
July 25, 1978 and remanded the record to the Secretary of Education
for an adjudication, including findings of fact consistent with the
Commonwealth Court opinion.
20. Upon further review of the record, the Secretary of Education makes
the following findings of fact as supported by substantial evidence:
A. Appellant's immediate supervisor, Dr. Andrews, testified that
Appellant's work product consisting of the initial 20 psycho-
logical reports that she had written, was a disgrace. W.T.
924.
B. Other psychologists in the department refused to cosign any of
Appellant's psychological reports; cosigning by a fellow
-4.J243
psychologist is required as part of departmental policy. [N.T.
92a]. The department experienced no other in-tance of a.
colleague refusing to cosign another's report.. All of
Appellant's colleagues refused to sign her reports. [N.T. 86a].
C. Appellant's inaccurate testing of a special education student
resulted in her incorrect recommendation that the student be
placed in a regular classroom. The student was in twelfth
grade and had been in special education classes all his life.
Appellant recommended that he be switched to regular classes
for the last five months of his senior year. Appellant's
recommendation, if implemented, would have been detrimental to
the student's education and would have deprived him of the
opportunity to attend postgraduate classes. [N.T. 101a -
104a].
D. Appellant tested another student by administering .'fr adult
Wechsler psychological test instead of the child Wechsler test
and failed to provide an adequate summary and recommendation in
her report on this child. [N.T. 122a - 125a].
E. Only one of the twenty-six reports prepared by Appellant was
deemed to be competent by her superior. [N.T. 135a].
F. Appellant 'ailed to professionally conduct two psychiatric
consultations; making no active contribution during such
conferences: Typically the psychologist prepares the-parents
for the meeting with the psychiatrist; reassures them, and
gives the psychiatrist all the pertinent information and input
concerning the student. Appellant merely provided written
reports to lhe psychiatrist but. made no verbal contribution
during the consultations. [N.T. 155a - 157a].
G. Appellant failed to test a particular student and attempted to
update past test results that were two years old instead and
present it as current. Every Centennial Special.Education
student must be retested every two years as mandated by
Pennsylvania Department of Education. [N.T. 130a - 131a].
H. Within one month, Appellant changed her own recommendation that
a mentally retarded student should be assigned to a regular
classroom. The initial decision of Appellant to "mainstream"
this child was based on results from improper testing
administered by the Appellant. Appellant first scored the
child with a "91", a score indicating average intelligence on
the Stanford Binet Standard IQ test. When told to retest the
child, Appellant :cored the child with a "66", a score
indicating the child was borderline mentally retarded. [N.T.
112a - 1214.
I. Dr. Andrews repeatedly approached Appellant on matters of
improper tests and other areas in which Appellant needed
improvement. Appellant continued to improperly test students;
her work product continued to be incompetent. [N.T. 300a -
321a].
DISCUSSION
This case has been remanded to the Secretary of Education for an
adjudication, including findings of fact, consistent with the opinion of
2452 F; ;
the Cummonweailh Court. Grant v. Beard of Directors of the Centennial
School District, 43 Pa. Commw. Ct.556, 403 A.2d 157 (1979). Justice
Rogers held:
Order:
AND NOW, this 27th day of June, 1979, the Order of theSecretary of Education made July 25, 1978 is vacated and therecord is remanded to the Secretary of Education for anadjudication, including findings in fact, consistent with thisopinion.
Id. at , 160.
The language of the above Order does not require the Secretary to
condact a rehearing regarding this matter. A review of the instant
record consisting of some 514 pages of testimony, exhibits and briefs
indicates it is complete. The parties were provided ample opportunity to
raise and litigate all relevant questions of fact and law. Appellant's
December 3, 1980 request for a hearing to present expert testimony on the
standard of Appellant's performance as a school psychologist is therefore
denied. The Commonwealth Court, denied Appellant's prior request for a
rehearing stating that:r.
[Appellant] testified at length on both direct andcross-examination as to the merits, and at one place or anothershe refuted or explained every significant incident orcircumstance depended on by the School Board as evidence ofincompetency. At the conclusion of the hearing, Mrs. Grant'sable counsel summed'up on the merits with considerable vigor .
. . there is no suggestion whatever in the record of thehearings, which we have read will some care, that theAppellant's counsel was proceeding lightly on the merits. His
cross-examination of the School Board's witnesses was thoroughto a fault and his objectiuns numerous.
Id. at , 158.
Pennsylvania Administrative Agency Law is clear that when a court
deciolps an Order by a government agency is improper due to an error of
law, it may require further administrative action to determine if the
246
proper decision can be made on the merits from the total record.
Klingensmith v. Department of Labor and Industry, 1 Pa. Commw. Ct. 204,
273 A.2d 920 (1971). We find that the Secretary can make a final
adjudication, complete with findings of fact on the merits, from the
record as it now stands.
The Secretary's duty in promulgating an order is to set forth the1,'
findings of fact which are essential to the validity of such order.
These findings must be sufficiently specific to-enable the court in
reviewing that action to pass upon questions of law. Grant supra.,
Gottshall v. Blatt, 71 DAUPH 383 (1959). Sections 507, 704 of the
Administrative Agency Law, 2 Pa. C.S. §§507, 704. Such administrative
findings must be based upon the evidence and should state the factual
situation clearly and unequivocally. Appeal of Veterans Club of Shopa
Davey Home Association of Blakely, 50 Lack Jr. 29 (1949). However, the
Secretary functioning as an adMinistrative determinator of fact is not
required to set forth findings specifically noting the rejection, and
reasons for such rejection; of each and every minor allegation raised at
the dismissal hearings of the Appellant. Application of Midwestern
Fidelity Corp., 26 Pa. Commw. Ct. 211, 363 A.2d 892 (1976).
Appellant, in the instant case, was employed ab a school
psychologist for the Centennial SchoolDistrict: On June 13, 1975,
Appellant was informed by her supervisor, Dr. Andrews, that she would be
given an unsatisfactory rating. EF.F.No. 3]. On July 11, 1975,
Appellant was given an unsatisfactory rating on the standard HEBE 333
form. By letter dated August 1, 1975, Appellant was informed that
charges for her dismissal had been brought and that a hearing on the
charges would be held on August 12, 1975. Appellant was charged with
247
. .......
itimoralily, incompetency, persistent negligence, persistent and willful
violation of school laws and intemperance. Hearings were held on the
charges before the School Board on August 12 and August 20, 1975 during
which evidence was presented regarding Appellant's poor performance as a
school psychologist. On August 26, 1975, the School Board voted to
dismiss Appellant for incompetency. The question now before the
Secretary is whether the record contains evidence upon which findings of
fact on the merits can be made to uphold the Centennial School District's
dismissal of Appellant. The Secretary finds the record contains such
evidence.
The test in administrative agency law regarding substantial evidence
requires that the findings of fact necessary to support an adjudication
must be supported by more than a scintilla and must do more than create a
suspicion of existence of the fact to be established, and means such
relevant evidence as a reasonable mind might accept as equate to
support a conclusion. A.P. Weaver v. Sanitary Water Board, 3 Pa. Conunw.
Ct. 499, 284 A.2d 515 (1971).
The Weaver decision was applied to the Appellate review of t. e
School Board's adjudication in Landi v. West Chester Area School District,
23 Pa. Commw. Ct. 586, 353-A.2d 895 (1976). In Landi, the Commonwealth 4
Court declared that the substantial evidence necessary to justify dis-
miec°1 is deteuuined by whether a reasonable man acting reasonably might
have reached the same decision reached by the board.
Applying the above test to Dr. Andrews, Appellant's
immediate supervisor, testifieethat Appellant's work product (the
intitial 20 psychological reports that she had written) was a disgrace.-
2DAJ. ln explaining this conclusion, Dr. Andrews stated that none
of the other staff psychologists would cosign any of Appellant's
psychological ~reports, thereby directly disregarding departmental policy
requiring that all reports must be cosigned. F.F.l 20B].
Appellant repeatedly inaccurately tested students which resulted in
her incorrect recommendations that these students be placed in regular
classrooms. (F.F. 20C). In one instance, Appellant:Anaccurately tested
a special education student and requested that the student be placed in a
regular clas,room. This particular student was in the 12th grade and had
been in special education classes all of his life. Appellant recommended
that this student be switched to regular classes for the last five months
of his senior year. This e,.wmendation, if implemented, would have been
detrimental to the studen_ z;:ucation. This student was reading on
approximately a first grade el at 'le time of Appellant's
recommendation that the chiA .i;rs.:ceamed. Further, such
mainstreaming would this c<,4:. deded the student the opportunity to
participate in appropriate sp!c.-1 Laucation programs until the age Jf 21.
(F.F. 20C].
Appellant ev.,/uated another student by administeriEg an adult
psychological test instead of the child version of that test and ilso
failed to provide an adequate summary and recommendation in the report on
this child. F.F.i 20D]. In yet another instance, within one month
Appellant changed her own recommendation that a mentally retarded student
should be assigned to a regular claz,Froom. Appellant's initial decision
to try to mainstream this child was based on the results of improper
testing once again administered by the Appellant. Appellant tested the
student with ttie Stanford BINET Standard IQ test. Appellant first scored
2492Du
We child with a "91", a score indicating average intelligence. When
told by her superior to retest this child, Appellant scored the child
with a "66", a score indicating the child was borderline mentally
retarded. [F.F. 20H].
Appellant also failed to professionally conduct two psychiatric
consultations. As the school psychologist, it was part of AppellanCs
job duties to participate in psychiatric consuiLauw... .
and psychiatricts regarding certain school students. During the two
psychiatric consultations in question, Appellant made no active
contribution. Typically, it is the role cf the school psychologist to
prepare the parents for the meeting with the psychiatrist. This is done
in order to reassure the parents as well as to give the psychiatrist all
the pertinent information and input concerning the particular student.
During the consultations in question, Appellant merely provided written
r, )rts t, the psychiatrist and made no verbal contribution whatsoever.
IF.A
repeatedly approaclIJI the Appellant on matters of her
improper ofst..r las as well as other areas in which she felt
App improvem,,nt, Appellant continued to improperly test
sttal- .S! lrk pro,p.rt continued 1:2 be incompetent. [F.F. 201].
Dr. Andr:w.! c1 Tic:tore the school bo,..d that only one of the
twenty-six *P:;o:1.0. by the Appellant was competent. [F.F. 20E].
We .:inn -'Iant'c repeated inability to correctly tekher
students, !.er failure to improve her job performance upon her superior's
repeated revests to do so, and the fact that Only one of the twenty-six
teporls prepared by the Appellant was leemed to be competent by her
superior provides si.istantial evidence to uphold the Centennial School
,tjc; 25C
wo
District's decision to dismiss Lh6 Appellant for incompetency.
Accordingly, we make the following:
2512 -1
ORDER
AND NOW, this 10th day of August, 1981 it is
ordered and decreed that the appeal of Ruth S. Grant from the decision
of the Centennial School District is hereby dismissed.
Robert G. ScanlonSecretary of Education
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF EDUCATION
Myron L. Fasnacht,Appellant
v. Teacher Tenure Appeal/No. 18-79
Eastern York School District,Appellee
OPINION
Myron L. Fasnacht, Appellant herein, has appealed from
the decision of the Board of Directors ok the 'Eastern York
School District, dismissing him as a professional employee on
the groui.ds of persistent negligence.
FINDINGS C FACT
Myron L. Fasnacht was hired, by the Eastern York School
District (the District) on September 1, 1970, and was a tenured
professional employee of that District teaching English, reading,
spelling, social studies, math and science to special education
students in the tenth, eleventh, and twelfth grades in the Eastern
High School at the time of his suspension without pay on January
4, 1979. N.T. 6,7; Contract of September 1, 1970.
2. Prior to his suspension without pay, Mr. Fasnacht as
employed by the District for nine (9) years. N.T. 6, 121.
3. Mr. Fasnacht was suspended without pay by District
Superintendent,,Thomas Jenkins on January 4, 1979, for persistent
negligence and incompetence. N.T. 9.
253
4. By letter of January 12, 1979, the Board of Directors
of the Eastern York School District (the Board) informed Mr.
Fasnacht of the ,ecific charges against him and scheduled a
hearing for January 24, 1979. Letter of January 12, 1979, Board
to Fasnacht.
5. The list of charges was divided into two categories:
persistent negligence and incompetence. All eight allegations
in the persistent 1-.egligence ca gory related to alleged sleeping
ja clr3ss The twenty-three allegations in the incompetence category
related to lesson plans, individualized education plans (IEP's),
subject matters being taught, teaching methods, and Mr. Fasnacht's
evaluations on the DEBE 333 form for 1972-73, 1973-74, 1974-75,
1975-76, 1976-77, and 1977-78. Letter of January 12, 1979, Board
to Fasnacht.
6. A hearing was held January 17, 1979, and February 20,
1979. By agreement, the deposition of Mr. Fasnacht's rheumatoloaist,
Dr. Marlin E. Wenger, was taken June 14, 1979. Oral argument was
subsequently heard before the Board. On October 9, 1979, by a
vote of 6-Yes, 2-No, 1-Absent, the Board adopted findings of
fact and, based on those findings, upheld Mr. Fasnacht's dismissal
on the grounds of persistent negligence. N.T. 1; Deposition of
Marlin E. Wenger, Board Minutes October 9, 1979; Adjudication of
Board.
7. At Mr. Fasnacht's hearing, the Administration did not
,ffer into evidence Mr. easnacht's official DEBE 333 rating forms,
and objected to Mr. Fasnacht's offering these fornis into evidence.
2t; 254
Over these objections, his ratings fir the school years 1974-75
1975-76, 1976-77, and 1977-78 were admitted. For all these vear'R,
Mr. Fasnacht was rated overall satisfactory. N.T. 125-126; Teacher's
Exhibits Nos. 1,2,3, and 4.
8. For all the school years listed above, Mr. Fasnacht
received satisfactory ratings in all categories including, but
not limited to "habits of conduct," "planning and organization,"
"individualization," "classroom generalship,' "manipulation of
materials," "normal development" (of pupils), and "subjec_ matter
progress" (of pupils). Teacher's Exhibits Nos. 1,2,3, and 4.
9. After the close cf
attorney conceded, "We hav--.:
competency." N.T. 126.
the administration's case, its
not put forth any evidence on in-
-
10. Testimony at the hearing was limited to four subjects:.
allegations that Mr. Fasnacht's individual education plans for
1977-76 were inadequate and had to be corrected by him, allegations
that Mr. Fasnacht failed to submit lesson plans to the office on
several occasions in 1!:76 -77, allegations that Mr. Fasnacht did
not teach his pupils it accordance with their IEP's, and allega-
tions.that Mr. fasnacht was repeatedly observed sleeping in class.
11. The Board di.I not find any deficiency in Mr. Fasnacht's
preparation of IEP's. Adjudication of Board, October 9, 1$0'9.
12. Mr. Fasnacht failed to submit lesson plans to the office
.Ln timely manner for the weeks beginning October 25, November 1,
::!vember 9, and November 22, 1976; January 26, February 8, and
March i, 1977. N.T. 111.
255
13. Beg:4.nning tt. 1977-78 school year, Mr. Fasnacht was r.:
longer reguire to prepare and -submit lesson plans because, as
a teacher cf rer.p education, he had to prepare IEP's instead.
N.T. 21.
14. AsE,Ant Superirtendcnt Je N. Zimmerman testified that
Mr. Pasnacht did not teach in :-.ccordance with his pupils' IEP's
in 1977-70 and 1978 - -79. N-T. 57-58,
15. Ms. Zimmerman never parscnally observed Mr. Fasnacht
teaching, but rather based her conclusions on two observations
by others in 1977-78 and one in 1978-79-;--N.T. 60-61.
16. Each of the three actual classroom observations was of
a social studies class. N.T. 59.
17. Ms. Zimmerman alleged Mr: Fasnacht' deficiency in
1977-78 as follows:
"In comparing the IEP's for 1977-78, the IEP'sall call for instruction in Social Studies tobe in the area of the United States. I foundabsolutely nothing in any of the classroomobservations on that subject." N.T. 57-58.
18. When cross-examined on the first classroom observation
in 1977-78 and asked what topic was being t,F..1ght, Ms. Zimmerman
responded:
"It was American h-story from the standpointof the Civil War and the Industrial Revolutionand the factory system." N.T. 60.
19. Ms. Zimmerman's conclusion that Mr. Fasnacht's teaching
in 1978-79 did not fol:ow hLs pupils' IEP's was based on une
classrc,m observation by Assistant Principal Charles Vanderwater.
N.T. 61.
256
20. Mr. Vanderwater --stified that he obse :. Fasnacht
teach a social studies claw that included lessons _. democracy,
early exploration, and an assignment concerning the writing of
the Constitution. N.T. 93-94.
21. Mr. Vanderwater testified that Mr. Fasnacht was not
following his pupils' IEP's, and that none of the subjects
taught was proper in view of any of the IEP's for his special
education students., N.T. 93-94.
22. On cross - examination, Mr. Vanderwater conceded that
,e'had not reviewed the pupils' IEP's before he made his
classroor observation and written critique of Mr. Fasnacht's
teaching. N.T. 95.
23. On further cross examination of Mr. Vanderwater, the
following exchange occurred:
Q. "How did you know whether or not he was
following the IEP's when you hadn't in fact even
lookA at the IEP's when you made your observation?
o response.)
Q. You didn't know whether he was following them
or not, did ou?
A. It was irrelevant at that time." N.T. 96.
24. There is neither credible nor substantial evidence to
support the Board's finding that:
"On a number of occasions. Mr. Fasnacht was observedteaching subjects totally inconsistent with individualeducation plans." (Adjudication of Board, October 9,1979, Finding of Fact No. 18).
257 2 24
25. The Board found that Mr. Fasnacht "was observed sleeping"
in class twice during the week ending March 10, 1977; on May
16, 1978; on October 2, 1978; on October 31, 1978; and on January
3, 1979; and that "he was observed with his head slumped over
desk and his eyes closed in his classroom during late
Novf-Nk,.;.27 1978." Adjudication of Board, Octob.,!: 9, 1979, Findings
of Fact, Nos. 4,5,6,7,8,10 and 9.
25. On none of the occasions of alleged sleeping was Mr.
Fasnacht not sitting at his desk, nor was he heard to snore, nor
wa he ever physically awakened by anybody.
27. Although it is clear that Mr. Fasnacht denied th7
allegation of sleeping on at least one occasion, there is con-
flicting testimony as to whether he did so on other occasions.
N.T. 11, 129, 157. As developed below, he was not confronted
with the accusation of sleeping on several of these alleged
occasions.
28. One administration witness testified that Mr. Fasnacht
has a flaccid apperance, is corpulent, and acknowledged that Mr.
Fasnacht has "hooded eyes" in that "when he looks at you, you
find that you're looking at his eyelashes." N.T. 103-104.
29. Mr. Fasnacht's rheumatologist, Dr. Wenger, stated in
his deposition that he has prescribed allopurinol for Mr. Fasnacht,
that allopurinal is reported to have caused drowsiness in a few
patients, that it is possible that Mr. Fasnacht experienced
drowsiness as a result of taking allopurinol, but that he has
258
no way of knowing whether it has induced drowsiness in Mr.
Fasnacht. Deposition of Marlin E. Wenger, pp. 4, 6, 15.
30. John Manley, then Assistant Principal, testified that,
while making routine checks of the building, he had twice observed
Mr. Fasnacht sleeping in his room in March 1977. N.T. 71.
Mr. Manley observed Mr. Fasnacht from outside his
room air :id not enter it. N.T. 71, 78.
Mr: Fasnacht did not have his head down when Mr. Manley
observeu him. N.T. 78.
33. At the hearing before the Board when Mr. Fasnacht
assumed the same position relative to Mr. Manley as in March
1977, Mr. Manley testified that his eyes were then closed when,
in fact, they were open. N.T. 78-79.
34. In view of the failure of Assistant Principal Manley
to enter Mr. Fasnacht's room of mentally retarded students to
awak3n him if asleep, Mr. M.7nley's inabili4.1, to determine in
sih.Lar circumstance whether z-ir. Fasnacht's eyes were open or
closed, and Mr. Fasnacht's s.,.d.3fzictory rPting for 1976-77, there
is no substantial nor credible evidence that V.r. Fasnacht was
asleep in his classroom in March 19/7.
35. Thomas Jenkins, then Principal, testified that he
observed Mr. Fasnacht sleeping in class on May 16, 1978. N.T 10.
36. Mr. Fasnacht was sitting essentially upright at the
time of this observation. N.T. 31.
259
37. When he viewed Mr. Fasnacht in a similar position at
the hearing, Dr. Jenkins could not determine when his eyes were
open or closed. N.T. 32
38. Although Dr. Jenkins testified on direct examination
that he awakened Mr. Fasnacht, on cross examination he stated,
"When I approached his desk, I got just about to his desk befne
.tle realized that I was there and appeared to awaken." N.T. 10, 32.
39. Mr. Fasnacht testified that he has a chronic hearing
problem which probably caused him not to hear Dr. Jenkins until
he came near and which has since been meliorated by a suction
procedure performed by a hearing specialist. F.T. 129-133.
40. In light of Dr. Jenkins' inability to determine in a
similar position whether Mr. Fasnacht's eyes were open or closed,
the fact that Mr. Fasnacht acknowledged Dr. Jenkins' presence
without being called to or prodded, and Mr. Fasnacht's satisfactory
rating for 1977-78, there is no substantial nor cred:jole evidence
that Mr. Fasnacht was asleep in his class on May 16, 1978.
41. Dr. Jenkins, then Superintendent of Schools, testified
that he next observed Mr. Fasnacht sleeping in class on October
2, 1978, and that Mr. Fasnacht awakened when he ,I)proached his
desk. N.T. 20
42. At the time of this othservation, Hr. Fasnacht was at
his desk in the rear of the room, sitting upright, not with his
hands on his head. N.T. 34.
43. When Mr. Fasnacht assumed a similar position at the
hearing, Dr. Jenkins testified that his eyes appeared closed
26026 6
when, in fact, they were open. N.T. 34-35.
44. In light of Dr. Jenkins' mistaken belief under similar
circumstances that Mr. Fasnacht's eyes were closed, there is no
substantial or credible evidence that Mr. Fasnacht was asleep in
his classroom en October 2, 1978.
45. Superintendent Jenkins and Principal Manley testified
that together they observed Mr. Fasr-cht asleep on October 31,
1978, while passing his classroom. N.T. 10,70.
46. Although Dr. Jenkirs had warned Mr. Fasnacht a month
earlier tat he would take disciplinary action against him the
next time he found Mr. Fasnacht asleep, Dr. Jenkins did Lot
bring this alleged incident to Mr. Fasnacht's attention, record
it in Mr. Fasnacht's personnel file nor take any disciplinary
action. N.T. 35,36.
47. Although Superintendent Jenkins and Principal Manley
both testified that they believed Mr.Fasnacht to be asleep in
a room of mentally retare3d pupils, they did not even enter the
room. N.T. 36.
48. When questioned as to why they did not enter the room,
Principal Manley could offer no explaLation. N.T. 81
49. In light of the factors cited in Findings 45-47, supra,
there is no substantial nor credible evidence that Mr. Fasnacht
was asleep in class on October 31, 1978.
50. Principal Manley and Assistant Principal Vanderwater
testified that they saw Mr. Fasnacht sleeping at his desk in
261 26 '
class sometime in November of 1978. N.T. 71, 92.
51. This alleged incident was not documented. N.T. 71.
52. Mr. Fasnacht was c.bserved bye them for four or five
seconds from the hall through a window. N.T. 101, 102.
53. Neither Principal Manley nor Assistant Principal
Vanderwater entered Mr. Fasnacht's classroom. N.T. 101-102.
54. When questioned, Mr. Vanderwater could offer no
explanation for their failure to intercede. N.T. 102.
55. Neither Mr. Manley nor Mr. Vanderwater discussed this
incident with Mr. Fasnacht. N.T. 71, 104.
56. In light of the factors cited in Findings 50-54, there
is no substantial nor credible evidence that Mr. Fasnacht was
asleep in his classroom in late November 1978.
57. Dr. Jenkins and Principal Manley testified that they
observed Mr. Fasnacht asleep on January 3, 1979. N.T. 11, 70.
58. Dr. Jenkins and Mr. Manley did not enter Mr. Fasnacht's
room, nor confront him at that time. N.T. 39.
59. In light of the failure of Dr. Jenkins and Mr. Manley
to enter Mr. Fasnacht's classroom of mentally retarded children,
there is no credible or substantial evidence th,?4. Mr. Fasnacht
was asleep on January 3, 1979.
262
DISCUSSION
The basic issues raised on appeal are as follows:
Did the Board err in basing Mr. Fasnacht's discharge onon competency related items (lesson plans and individualeducation plans) ?
Does the evidence support the charge of persistent negli-gence (sleeping in class)?
Even if Mr. Fasnacht's dismissal was proper, is he entitledto back pay for the period of January 4, 1979 (when he wassuspended) tc October 9, 1979 (the date of the Board's decisionto terminate) ?1
A. Lesson Plans and Individual Education Plans
Appellant Fasnacht argues that the Board erred in basing
his dismissal on his alit. -Ted failure to submit lesson plans
to the office on occasion in 1976-77 and his alleged failure
to teach subjects on his pupils' IEP's? He argues that these
are competency related items; that he was at all times rated
satisfactory ::1,:7_ading specifically "planning and organization";
that any deficiency regarding submission of lesson plans in
1976-77 is insignificant and far removed from his discharge
in 1979, and that testimony demonstrated that he was properly
instructing his students based upon their IEP's.
1Two other issues raised were mere restatements of Issues1 and 2. Another ("Was the evidence presented fairly . . . ?)
was not briefed or argued by Appellant.
2A.,.though Appellant argues in his brief that his IEP's for1977-78 were satisfactorily corrected and that his pupils' instructionwas :tverly individualized, he need not have done so. The Boardmade no findings on these issues. The Board's only finding ofdereliction regarding IEP's was Number 18, that Mr. Fasnacht wasobserved teaching subjects totally inconsistent with the IFP's.
263
It is established that Mr. Fasnacht at all times received
satisfactory ratings on his DEBE-333 rating form, including
satisfactory ratings in "planning and organization." Clearly
proper planning and organization are iogredients of teacher
competence as demonstrated by their inclusion on the DEBE-333
form. The Board specifically eschewed a finding of incompetency
and does not here challenge the Departmental regulation that:
Two consecutive unsatisfactory ratings of aprofessional employee are necessary to supporta dismissal on the grcunds of incompetency.Pa. Bulletin, Vol 8, Nos 34, Pugust 26, 1978.
The .Board argues that failure to submit le::son plans does
constitute negligence rather than incompetence, citing Davies
v. Big Spring School District 15 School Law Informati Exchange
No. 109 (1978).
There is merit to both sides of this argument. Fa:,.lure to
make proper lesson plans for pupils would be an indication of
incompetency. Repeated failure to file copies of those plans
in an office could demonstrate negligence.
Nevertheless, Mr. Fasnacht's argument that any negligence
regarding lesson plan submissions in 1976-77 is irrelevant to
his dismissal in 1979 is compelling. As .:(4.ministration
testified, Mr. Fasnacht's classesiof mentally retarded students were
not even supposed to have lesson plans beginning with the 19777,8
school year, but rather IEP's. Had here been evidence of idiluie
by Mr. Fasnacht to submit IEP's in 1977-78 and 1978- -79, his failure
2; vi 264
to submit lesson plans in 197677 might be part of a pattern of
negligence in this general area. However, no such evidence w s
adduced at the hearing, and the Board made no such finding.,
Standing by itself, Mr. Faspacht's failure to submit copi- of
his lesson plans to the office over a year and a half before he
"Was dismissed, is no cause for dismissal,.
The Board argues that Mr. Fasnacht' ailure to subAt lesson
plans in 1976-77 should be coupled with fiis alleged subsequent
failure to follow his pupils IEP's to demonstrate a pattern of
persistent negligence. However, there is simply no credible nor
substantial evidence to support the Board's only finding regarding
IEP's, that Mr. Fasnacht "was observed teaching subject totally
inconsistent with (them)."
Two administration witensses testified that Mr. Fasnacht
was observed teaching subjects inconsistent with his pupils' IEP's3.
The first witness, Assistant Superintendent Zimmerman, had never
persona_...y observed him teach, based her conclusions on three
observations made by other persons, testified that Mr. Fasnacht
was not following the IEP's because his Social Studies instruction
was not in the area of the UniStates, and then immediately
3A third administ tion witness, Principal John Manley.testified that Mr. Fasnacht taught beyond the level of hisstudents and engaged in group instruction instead of indiviauaiinstruction. The Board made no finding that Mr. Fasnacht haedone so. Mr. Manley did not testify that Mr. Fasnacht taught subjectsinconsistent with his pupils' lEP's.
2652
contradicted herself and stated that he was teaching American
history from the standpoint of the Civil War and try Industrial
Revolution and the factory system. The second witness, Mr.
Vanderwiter, testified that he observed Mr. Fasnacht teach sub-
jects inconsistent with his pupils' IEP's, but then acknowledged
that he hadn't read the IEP's when he made the classroom observa-
tion and his report on that observation and that t..e, deemed the
IEP's to be "irrelevant" to his observation of Mr. Fasnacht's
class of mentally retarded pupils.
Parenthetically, even if there was any credible, substantial
evidence that a special education teacher had, on occasion, taught
subjects not on his pupils' IEP's, that would hardly be grounds
for dismissal. Certainly there may be times when one area of
discussion leads to others, and a teacher should not be faulted
for pursuing other topics rather than stifling inquiry. Only
if a teacher fails to cover the subject areas on his pupils'
IEP's (or lesson plans) should he be disciplined. There is simply
a total absence of evidence that Mr. Fasnacht failed to teach
his pupils the subject areas they were supposed to learn.
B. Sleeping in Class
Certainly, it would be intolerable for any teacher to fall
asleep in class repeatedly, no matter what the reason. The mere
accusation of repeated sleeping in the classroom is insufficient,
howel;er, to support a teacher's termination. It is upon the
266
A
administration to present substantial evidence of such persistent-
negligence. In the instant case, the Board seems to have acted
upon the theory that where there's smoke there's fire,:,pather
than to rely upon proof of the charges.
Under Section 1131 of the Public School Code of 1949, the
responsibility of the Secretary of Education "after hearing
and argument and reviewing all the testimony filed or taken before
him" is to "enter such orcl;,.._ either affirming or reversing the
action of the Board of School Directors as to him appears lust
and proper." 24 P.S. S11-1131. The actual scope of review under
this provision 'tas been given varying interpretations by various
Secretaries of Education and the Courts over the years.
At times, the Commonwealth Court has held that a teacher's
dismissal must be 1pheld by the Secretary if there is substantial
evidence on the record for doing so, and that the Secretary may
not substitute his judgement regarding the credibility of witnesses
for the School Board, Penn-Delco School District v. Urso,
33 'e,Ilth Court 501, 382 A.2d 162, 167, (1978), Wissa-
hiL Jol District v. McKown --Pa. Commonwealth Court--, 400
A.2d 899 (April 23, 1979).
More recently, the Commonwealth Court has said:
...the Secretary of Education misconceived herfuntiori (in) that instead of making findingsoffact and adjudicating the matter on the meritsas was proper, she reviewed the record to seewhether it contained substantial evidence supportingthe School Board's conclusion . . .
2672 7 m
The piovision (S 1131 of the School Code) insummary establishes the Secretary of)pducatidnas the ultimate fact finder in cases bf thisnature and with this statute goes the powerto determine the credibility of witnesses, theweight of their testimony and the inferencesto be drawn therefrom. Grant v. CentennialSchool District Pa. Commonwealth CoUrt--Tf(r3-ikdi-37SIY,1 (June 27, 1979).
In this case, as detailed in the findings of fact, there
is no substantial,credible evidence to support the Board's
conclusion that Mr. Fasnacht slept in class on several occa-
sions. When each alleged incident is examined separately, it
is apparent that the administration has not met it burden of
proof.
Although a number of supervisors testified that they
. thougl. .217 saw Mr. Fasnacht asleep at his desk at various
times, their inability to determine whether the flaccid,
corpulent Mr. Fasnacht had his eyes open or closed under similar
circumstances at his hearing renders their testimony suspect.
Much more importantly, their actions on those occasions belie
their words. With only two, exceptions, no supervisor ever
entered Mt. Fasnacht's room where supposedly he was asleep in
a class of mentally retarded children. Dr. Jenkins testified
that he suspended Mr. Fasnacht with "regard for the children's
safety and welfare due to lack of supervision." N.T. 9. Yet,
it is imposiVible to believe that a teacher's superior--whether
assistant prix pal, principal or superintendent--would have so
little regard for mentally retarded school children's safety
and welfare that he -would perceive their teacher to be asleep
2 268
and sirply return to his office without intervening in anyway
nrotect those children.
Only Dr. Jenkins ever entered Mr. Fasnacht's classroom
whin he -andkight he saw him asleep. On neither occasion did
ae have to awaken Mr. Fasnacht physically, but rather Mr
Fa3nac)..'. noticed him as he approached near to his desk. Mr.
Fasnacht adequai7ely explained his failure to note Dr. Jenkins
until then by his loss of hearing at the time, which was sub-
sequently ameliorated. .Significantly, . Jenkins could not
tell whether Mr. Fasnacht's eyes were ope or closed when theirNN
relative positions on these occasions were re-c:..:ated at the
heating. Had Dr. Jenkins had to awaken Mr. Fasnacht on these
occasions, were he able to determine in a re-created situation
wLether Mr. Fasnacht's eyes -;are open or shut, if there were
corroborating testimony from students that Mr. Fasnacht was
asleep, if Mr. Fasnacht had been heard snoring, or if Mr.
Fasnacht's class was'out of control, then the charges of
sleeping might be es blished. On the record that comes to
the Secretary, these harges are simply unsubstantiated.
C. Bac- _ay WheET:e11242nis_Welol
Since we find that the Board has not established that Mr.
Fasnacht was guilty of persistent negligence, it is unnecessary
.to decide this issue.
269 27J
Accordingly, we --Ake `lac following:
,TmER
AND NOW, this 4th day of September , 1980, it is herebyC
Ordered and Decreed that the decision of the Board of Sci.-1
Directors of the Eastern Yolk School District terminating
Myron L. Fasnacht for persistent negligence be reversed, and
that Myron L. Fasnacht be reinstated with 1)w-A pey.
o ertSecretary of Educati
270
IN THE OFFICE OF THE SECRETARY )F EDUCATIONCOM)IONWEALTH OF PENNSYLVANIA
Jddith Gurmankin,Appellant
v. Teacher Tenure AppealNo 9-79
SCHOOL DISTIRCT OF PHILADELPHIA,Appellee
OPINION
Judith Gurmankin, 'lpellan: herein, has appealed her Octt.ber 9, 1979
dismissal by the Cc'ao31 District of Philadelphia. For L'easons stated
below, the Secretary of Education has dismissed the appeal.
FINDINGS OF FACT
1. Judith Gurmankin, Appellant herein, was a profes'sional employee
of the School District of Philadelphia employed as a high schoo'
at the time of the actions .erein a:21aled. (Appellant's Petition,
paragraph 1)
2. By letter dated October 9, 1979 the Board of Education of the
School District of Philadelphia advised Appellant that she had been
dismissed. (Appellant's Petition, paragraphs 2, 12)
3. On November 8, 1979 Appellant appealed the action of the School
District of Philadelphia to the Secretary of Education pursuant to
Section 1131 of the Public School Code, 24 P.S. §11-1131.
4. By letter dated January 23, 1980 Michael A. Valanza, Attorney
for Appellant, notic'ed the hearing officer, Linda J. Wells, Esquire,
that Appellant had 'adirlied him of her desire to withdraw her Petition of
Appeal.
271 2.71
5. In the same letter referer above, attorney for Anr,el'ant
notified Ms. Wells that Appellant I advised 1.im that she w,
seeking new counsel to represent any future hearings.
6. In view of Appellant's states decision to seek new counsel it
was agreed betweer Linda Wells, hearing officer, and Michael A.
Valanza that actioa before the Secretary of Education would be postponed
until Appellant had had an opportity to engage other counsel and her
new counsel had had an opportunity to advise Appellant further on her
lecision to withdraw her Petition Appeal with the Secretary cf
Education.
7 By letter dated Fe:ruary 2, 1980, addressed "To Whom it May
Concern,' App,_lant hersel: informed the Secretary of Edunation as
follows: "I want to put oft the meeting. My case is Federal.... I want
to put.off the hearing wit' ,',he Secretary of Education, until I hear from
the Federal government."
8. Linda J. Weils, hearing officerlunsuccessfully attempted to
contact Appellant follo,-,ng her letter of February 2, 1980 to determine
her intent to pursue her appeal.
9. In two years since the date of Appellant's letter to the
Sec-etary of Education, no contact has been made by Appellant or any
attorney acting in her behalf to pursue the appeal filed with the
Secretary of EducaLion.
DISCUSSION
Appellant was notified in October, 1979 that the Board of School
Directors of the School District of Philadelphia had dismissed her as a
teacher. In November, 1979 she filed a Petition of Appeal before the
2=;272
Secretary of Education. Following the filing of her appeal the only
contact receive:.' from Appellant is correspondence from her attorney
indicating Appellant's desire to sith6':aw her appeal followed by
Appellant's own correspondence indicating her desire to put off her
hearing before the Ser7zetars7 Education. Since the receipt of that
correspondence there has been no effort to contact the Secretary of
Education to e: her clarify Appellant's desire to withdraw her appeal or
to put-sue the appeal. Failure to pursue this appeal for such an extended
period of time is grounds for dismissal.
Accordingly, ;:ter the following:
273273
ORDER
AN_ NOW, this 11th day of February, 198_, ic is Ordered and
Ptcreed that the appeal of Judith Gurmankin be dismissed.
Robert G., ScanlonSecretary of Ed ration
COMMONWEALTH OF PENNSYLVANIADEPARTMENT OF EDUCATION
JOHN A. MIGNONS,Appellant
v. TEACHER TENURE APPEALNo. 20-79
RA1:NOR TOWNSHIP SCHOOL DISTRICT,Appellee
OPINIuN
J A. Mignone, Aprc' -, herein, has appealed from a decision of
ct dismissing him as a professional
,3:.eut negligence, mpetency, .ind willful
the Radnor.Township Sc
employee on grounds f
violation of school 1.
FINDINGS OF FACT
1. John A. Mignone (Appellant) was hired as a professional employee of_
the Radnor Township School DiEr.-41-t (Radnor) in September of 1962
where he was continually employed until his suspension with pay,
May 14, 1979. (N.T. 15-49).
2. Appellant's assignment as a r' essional employee-of the Radnor
School District from 1962 to 1967 was that of a science teacher at
the middle school. (N.T. 16-45).
3. In 1967 Appellant was ,appointed to the position of Coordinator of
Educational Techrology. (N.T. 16-45). During this time Appellant
did nc-t teach classes; he was transferred to the senior high scaool.
His duties entailed planning a television project in conjunction
with the general expansion of the high school program. This plan
was to involve all of the schools in the school district. Appellant
2275
was to design the studio, the program, its utilization, and the
courses that would be added to the curriculum in accompaniment of
this expansion. (N.T. 15-57, 16-45, Exhibit M-22).
4. In 1969 Appellant became the distri, J's audiovisual coordinator and
teacher of aviation until 1975-1976, when he became audiovisual and
television coordinator for the high school. In 1976-1977 Appellant
was audiovisual television coordinator for the high school and
teacher of aviation and physical science. (N.T. 16-47).
5. In 1977 Apvllant's assignment was changed from avlo.risual tele-
vision coordinator to full-time science teacher. 'L ;..aanget
occurred in order to improve the efficiency of the audlovisual
television program, and to obtain more Aconomic use of tmcher
resources. This change enabled a full-time audiovisual coordinator
to be hired in hopes of making the program more eileztive. (N.T.
1-49, 111, 112, 114).
6. Appellant returned to the classroom on a full-time teach-Ing bas.A.b.
He taught the sections of ninth grade physical science, and one
section of astronomy. In 1978-1979 rle:lant had the same schedule
plus one section of geology each gamester. (N.T. 3-6).
7. Dr. John C. Crosby is the District Superintendent of Radnor Town-
ship School District. He holds a Superintendent's Letter of Eli-
gibility and has been so employed since January of 1976. (N.T. 1-
11, 14),
8. Dr. William F. Duffey is Assistant Director Superintendent of
Personnel of Radnor Township School District. He is responsible
for supervision and evaluation of personae:.. He has been employed
0276
by Radnor School District since 1976. (N.T. 2-51, 53). He is also
responsible for teacher evaluation programs in Radnor. (N.T. 1-18,N
19).
9. Mr. Donald P. Anderson is the Principal of Radnor High School. He
has been so employed since 1973. (N.T. 3-5).
10. Mrs. Sarah Knupp is the Assistant Principal for Instruction at
Radnor High School. She '.as taught chemistry at Radnor High School
for twelve years, was department chairperson for a year, ,Ind has
been the Assistant Principal of Instruction for the last three
years. (N.T. 9-67).
11. John J. ,A1rdesier is Assistant Principal for Administration at
Kads:r Hijh Sc'lool. He has been employed in this position since
7969. (N.7 5-0).
12. In 1976, an e:fort was made by the Superintendent to adopt a
systematic approach to the matter of teacher evaluation. A class-
room ob'ervation olicy (See Exhibit S-1) was adopted in order to
improve the uniformity and the consistency of teacher evaluation.
(N T. 1-15, 17).
13. A c/as/roort_observatio: of each teacher in Radnor Township is
perf lee at least once per year (N.1. 2-19). 71el obselw- on
for-. includes _he najor ca -gori of 1 - ), . Pe, ironment,
manoe,-.1.ent, an also 71rovid. 1 ! ,t cc IA. The
form also resaaves a -pace v.:-cr: teacher e
ence. A copy of a complted caservtion `o'-u. .3z -.! -eanher
who wls obszved. (N, T. 1-21, 56, 57,
277
1' 'la Radnor classroom observation form is used for classroom obse. a-
n and is also a component of the rating process. Radnor includes
administrative records and administrative notes of teacher per-
formance in areas other than classroom performance of teaching as
components of teacher ratings. (N.T. 1-21).
15. Consistent with Pennsylvania law, teachers in the Radnor School
District are rated at 'east once a year. (N.T. 1-25).
16. Using this information, the principal prepares the teacher e- lua-
tion/rating on the DEBE-333 form. If the rating is unsatisfactory,
the principal and superintendent meet to discuss the re an. The
superintendent then reads the information available to ra,.. in the
anecdotal record and reads the classroom observation report in
order to determine whether or not he concurs in the unsatisfactory
rating. If the superintendent concurs with the principal's rating,
he signs the DEBT -333 form. The teacher may appeal this rating to
the superintendent. (N.T. 1-22, 23).
17. During the ten years preceeding the 1977-78 school year, virtually
all DEBE -'333 rating forms at Radnor High School contained identical
numerical scores of 80, the maximum score a teacher could receive.
Mr. Anderson, the principal, ordinarily gave teachers an 80 if
their overall rating was satisfactory.
18. In the summer of 1978, the Superintendent requested that the prin-
cipal, Mr. Anderson, make a more intensive observation of ten
teachers whom he felt, based on com at and criticisms he had
received, should be more closely observed to see if they were
2s4 278
performing satisfectorlIv or not, and if not to offer them ascis-
tance. (N.T_ 1-27, 28, 31, 32, 33, 35, 36, 94, 95).
19. Appellant was on the list of teachers that the Superintendent sake,-?.
the Feinrips- to observe more closely. Where repeated criticism
was lodged against a te (ler, the Principal was to determine the
validity of said criticism and offer appropriate assistance.
However, if the criticism was unsubstantiated through the observa-
tions then the teacher could be freed from any unjust i,,ccusations
so that he cr she could truly teach. (N.T. 36),
20. The teachers lamed oa the list were advised that they would be
observed mc-c frequently; the Superintendent met with a group of
these named individuals who requested a meeting, and the Super-
intendent distributed newsletters to the staff which explained the
purposes of the more rigorous evaluation policy. (N.T. 1-29, 30,
31, 32; Exhibit S-4a, 4b). The Superintendent maintains that these
teachers were subjected to more evaluations, not more rigorous
standards thc. the other teachers in the district. (N.T. 3-38).
21. Appellant met with Mr. Anderson, on September 13, 1978. At this
time Mr. Anderson advised Appellant that he would be observed more
frequently L3sed upon the new policy. (N.T. 3-44, 45).
22. Appellant vas rated "satisfactory" for each year at Radnor School
District from 1962 through 1)77-78 school year. (Exhibits M-2
through M-13).
23. Appellant was rated "unsatisfactory" for the first semester of
1978-79 school year by Mr. Anderson on January 10, 1979, after
279 2
Mr. Anderson had consulted with Assistant Principals Chidester and
Knupp. The nut-rical score assigned was 58.5. Appellant was given
a copy of the r zing and anecdotal record on January 12, 1979.
This rating w, , discussed with him at a short meeting on January
15, 1979. f':-1 . 3-84, 87, 4-32, 15-97, 98; Exhibit S -20).
24. The only classroom observation of Appellant made during the fall
term of 1978-79 was performed on October 16, 1978 by Assistant
Principal Knupp. Out of 28 items on the form, two of these, disci-
pline and classroom organization, were marked with an "I" for needs
improvement.
25. There is a dispute as to the meaning of the use of the letter "I'
on the classroom observation form, S-1. The definition on the
legend of the form states that an "I" is used to denote "improve-
ment needed." Dr. Duffey, Mr. Anderson, Mr. Chidester, and Mrs.
Knupp, stated that they used the designation "I" on the form to
mean that the items so marked are "unsatisfactory" at the time of
the observation. Dr. Crosby, says that an "I" does not mean unsatisfactory
in and of itself. (N.T. 2-71, 4-26, 5-87, 9-73, 117, 1. 106, 110).
26. On the classroom observation form for October 16, 1978 Assistant
Principal Knupp commented that some of the students of Appellant's
physical science class/were pushing and shoving each other in the
hall when Appellant arrived at class at 1:07 p.m. A fire drill
took place and Mrs. Knupp rated that the class was very noisy and
slow to settle down to business. She also commented that although
the students were very noisy, they seemed to be interested in the
experiments in which they were engaged. (Exhibit S-10).
2 .' 280
27. In order to arrive at an unsatisfactory rating for Appellant for the
fall 'erm of 1978-1979, he Superintendent stated that the single
clal,v,rom observation for this term was not sufficient in and of
itself and therefore the observation.had to be utilized in conjunc-
tion with the anecdotal records to arrive at the unsatisf,-tory
determination. (N.T. 2-15, 16).
28. The anecdotal records incind j some incidents predating the rating
period because Mr. Anderson believed they evidenced nnaccer.table
conduct which had predat. ._ the rating period and had continued
through it.
29. The Superintendent reviewed the DEb .333 unsatisfactory rating of
1,.pellant for the first semester aod the anecdotal record attached,
and approved and signed it on January 23. 1979. (Exhibit S-20).
30. Appellant, feeling that the eating was unfair, requested the Super-
intendent investigate he unsatirfactory ratings. The Superintendent
went LL, the hi. -J met with six students and three teachers
to determine Mr. Mignone's unsatisfactory rating.
The Superintendent felt that the rat"ti; was fair, just, -nd correct.
(N.T. 1-64, 70; Exhibit S-21).
31. Appellant was rated "unsatisfactory" b: . tnderson for the second
semester of the 19/8-1979 school year after M. Anderson consulted
with Assistant Principals Chidester and Knupp. ,ppellant received
a copy of this rating on May 13, 1979. (N.T. 4-38; Exhibit S-24).
32. Appellant was rated "unsatisfactory" because seven classroom observa-
tions indicated that his classes were not well ordered, the attitudes
281
of his sturts towards his teaching was poor, students continued
to complain ..Lout his teachinc, methods and conduct, he continued to
violate basic operating policies and he failed to.improve his
performance to a satisfactory level from his previous unsatisfactory
rating issued for the fall term of 1978-1979. (N.T, 4-39, 40).
33. The Superintendent approved the unsatisfactory DEBE-333 rating for
the second semester after.reviewing it with Dr. Duffey, Mr. Anderson,
Mr. Chidester, and Mis. Krupp. (N.T. 1-63, 4-38).
34. It wa: the professional opinion of the Super.: tendent that Appellant's
priessional performance during the 1978-1979 school year was un-
satisfactory. This professional opinion was based upon the Super-.._
intendenea review of all the records rel.ating tc Appellant. The
Superintendent Eta ed that Appellant neglected to perform his
duties .as required by the Public School Code during the 1978-1979
school year. (1-80, 81).
35. The Assistant Superintendent concurred in he professional opinion
of the Superintendent. After a review of all of the records relating
to Appellant's 1978-1979 school year, Dr. L.ffoy felt Appellant vas not
competent and that he refused or neglected to obey the directives
of his Principal during that period. (N.T. 2-76).
36. Based on information available to them as Assistant Principals,
both Mr. Chidester and Mrs. Knupp have the professional opinion
that Appellant's performance during the 1978-1979 school year was
unsatisfactory. (N.T. 6-49, 56, 9-97).
4 ,jj282
37. The evaluatio a teacher on the DEBE-333 is in most respects a
subjective determination with a numerical score so cesignated.
(N.T. 4-65, 4-68).
38. Eight classroom observations were performed on Appellant during the
second half of the 1978-1979 school year. (Exhibit S-11, S-12, S-
13, S-14, S-15, S-16, S-17, and S-18).
39. Assistant Principal Knupp observed Appellant's ninth grade physical
science class three consecutive days in February of 1979. On
February 26, 1979 Mrs. Knupp found that improvement was needed in
the following ten categories: achieves rapport, arouses interest,
effective development, appropriateness, effectiveness, participa-
tion, group response, personal enthusiasm, routine procedures and
discipline. Mrs. Knupp commented that although Appellant's explanation
was clear and well done the teacher did not have the attention of
many of the students. Mrs. Knupp testified at the school board
hearing that this class was completel.y out of contrnl. (N.T. 9-74;
Exhibit S-11).
40. On February 27, 1979 Mrs. Knupp found Appellant's performance to be
in n'...ed of improvement in the following categories: achieves
rapport, arouses interest, effective develcpment, variety, effec-
tiveness, group response, personal enthusiasm, routine procedures
and discipline. Mrs.- Knupp commented on this observation form that
several students were tardy and failed to sign in on the green
sheet as Radnor High School policy for lateness of students required.
2932SJ
Mrs. Knupp further commented that during the-class several paper
wads were thrown towards the front of the classroom and that Appellant
ignored these. Mrs. Knupp concluded that this class was much
better than the class on February 26, 1979. (Exhibit S-12).
41. In the classroom observation of Appellant on February 28, 1979
Assistant Principal Knupp listed Appellant in need of improvement
in only one category, that of classroom organization. Mrs. Knupp
stated that participation under the category of student involvement
was outstanding. Mrs. Knupp further commented that it was a good
class period with appropriate use of time.
42. Dr. Duffey observed Appellant's physical science class on March 19,
1979. Dr. Duffey assigned Appellant an "I" in the following cate-
gories: achieves rapport, arouses interest, effectiveness, parti-
cipation, group response, conclusions drawn, lessons summarized,
personal enthusiasm, positive reinforcement, and discipline.
Dr. Duffey commented that this was one of the most distressing
examples of teaching he had ever seen.
43. Dr. Duffey observed Appellant's class on March 22, 1979. Dr. Duffey
assigned Appellant an "I" in the following categories: achieves
rapport, arouses interest, effective development, variety, appro-
priateness, effectiveness, participation, group response, lessons
summarized, personal enthusiasm, positive reinforcement and disci-
pline, Dr. Duffey found that Appellant was not in cRntrol of his
class.
284
44. Dr. Duffey discussed his classroom observation on March 19 and 22,
1979 with Appellant. (N.T. 2-71).
45. Assistant Principal Chidester observed Appellant's geology class on
March 26, 1979. Mr. Chidester 2ssigned Appellant an "I" in the
following categories: states purpose, arouses interest, illuminates
subject, clear sequence, effective development, appropriateness,
effectiveness, participation, group response, conclusions drawn,
lessons summarized, positive reinforcementr-and classroom organiza-
tion. Mr. Chidester commented on student lateness and the absence
of a sign-in form which caused Appellant to send a student to the
'office to get one. Mr. Chidester further noted that no students
participated vocally during the entire class. Mr. Chidester listed
five suggestions for Appellant to improve his teaching performance
on this classroom observation form. (N.T. 5-88, 89, 90; Exhibit S-
16).
46. Mr. Chidester observed Appellant's astronomy class on March 27,
1979. He assigned an "I" to Appellant in the following categories:
states purpose, arouses interest, illuminates subject, effectiveness,
participation, group response, conclusions drawn, and lessons
summarized. Mr. Chidester noted student lateness. He further
commented that the lesson was strictly teacher-dominated. Mr. Chi-
dester issued five suggestions to Appellant to improve his perfor-
mance. (N.T..5-90, 91; Exhibit S-17).
47. Mr. Chidester described the two March 1979 classes as very inade-
quate and very unsatisfactory at the-hearing before the School
Board: (N.T. 5-92; 6-49).
285
2 9 J.,.
148. Principal Anderson observed Appellant's ninth grade physical seie ce
class on March 30, 1979. Mr. Anderson assigned Appellant an "I" in
the following categories: achieves rapport, effective development,
effectiveness, group response, attitude, housekeeping, routfte
procedures, discipline, and classroom organization. Mr. Anderson
commented that Appellant arrived a full minute late. Mr. Anderson
further noted that the lab group worked well for a few minutes;
then socialization generally replaced the search for scientific
knowledge. Mr. Anderson further stated that this was the last
class on Friday, for both students and teacher. Mr. Anderson made
suggestions to Appellant on the classroom observation forms for how
he might improve his teachpr_performance. In these suggestions,
Mr. Anderson emphasized that the teacher sets the tone, always.
(N.T. 4-28, 29; Exhibit S-18).
49. During the 1978-79 school year, administrators at the Radnor School
District made numerous suggestions to Appellant concerning ways by
which he could improve his teaching performance. (N.T. 1-104, 2-
72, 3-81, 4-62, 5-41, 44, 90; Exhibit S-8, S-9, S-1I, S-12, S-13,.
S-16, S-17, S -18). On the basis of classroom observations, both
Mr. Anderson and Dr. Crosby had the professional opinion that
Appellant was in need of improvement and did not so improve during
the 1978-79 school year. The absence of improvement was particu-
larly noted in areas of student involvement, achieving rapport with
the students, arousing iuterest,-Foutine procedures and discipline
and classroom organization. (N.T. 1-58, 59, 197; 4-28, 29, 31).
2 j4, 286
50. After Appellant was suspended with pay, 46 of his former ninth
grade physical science students signed a petition at the conclusion
of the 1979-79 school year requesting pass/fail grading alleging
that they were not taught the same material as other ninth grade
students and therefore did not wish to take the departmental science
exam. (N.T. 7-79, 108; 9-9, 93; Exhibit S-34).
51. Mr. Anderson keeps an administrative performance log on each teacher
assigned to him, and has done so for some 13 years. This is a
method he utilizes to give himself a basis for recognizing patterns
of failure of teachers to meet administrative obligations so that
he can effectively deal with these problems. The faculty are aware
of Mr. Anderson's log and are cognizant of the fact that he uses it
as a part of his rating process of their professional performance.
(N.T. 3-41, 44).
52. The entries in this log on Appellant constituted a substantial part
of the anecdotal record that Mr. Anderson prepared to accompany the
unsatisfactory rating. (Exhibits S-20, S-24).
53. Appellant was persistently late. He was repeatedly late to school,
classes and administrative meetings. (Exhibits S-20, S-24; N.T. 3-
59, 65, 66).
54. Appellant persistently failed to leave adequate record plans for
substitute teachers as required by school policy. (N.T. 3-78;79,
6-95 to 105, 7-77, 8108, 109).
55. Appellant persistently failed to abide by appropriate administrative
procedures and school policy regarding field trips. (Exhibit S-24;
N.T. 3-53 to 57, 4-95, 960-81 to 92, 16-69).
287 293
56. Appellant persistently failed to maintain order and an appropriate
atmosphere duling his homeroom period. The principal was required
to inrervenc and restore order on several occassions. (N.T. 3-59,
60).
57. On May 11, the DEBE-333, with an unsatisfactory rating, was prepared
and submitted to Appellant by Mr. Anderson. Because of the length
of this document, Mr. Anderson told Appellant he could take it
home, look at it study it review it and that a meeting would be
scheduled the following Monday morning to discuss the DEBE -333
report. (N.T. 1-74-75).
58. On May 14, 1979 at the meeting to discuss the DEBE-333 unsatis-
factory rating of Appellant, Mr. Anderson indicated that because of
the unsatisfactory rating, charges had been prepared and that he
would recommend to the Superintendent and ultimately to the School
Board that hearings be started to dismiss Appellant as an unsatis-
factory teacher. (N.T. 1-75).
59. At the meeting on May 14, 1979 the Superintendent informed Appellant
that based on the two unsatisfactory ratings and his professional
opinion as to Appellant's incompetency as a classroom teacher,,he
was suspending Appellant with pay for the remainder of the school
year and that a hearing would ake place to determine whether or
not he would continue as a t cher in the Radnor School District.
(N.T. 1-76).
29288
60. A special meeting of the Radnor Township Board of School Directors
was held on May 16, 1979. The Board accepted the recommendation of
the Superintendent and voted to hear the charges that were set
forth. The Board approved the suspension with pay of Appellant
effective May 14 pending their decision on the dismissal charges.
The Board's decision was unanimous. (N.T. 1-77, 78).
61. On May 17, 1979 Appellant was sent by certified mail a four page
letter listing the charges against him.
62. Seventeen dismissal hearings were held on the following dates:
June 18, 19, 27, July 9, 10, 12, 16, 23, 30, 31, August 8, 13, 15
23, 28, September 12, and October 10, 1979. (N.T. Volumes 1-17).
63. On October 23, 1979 at a special meeting the Board of School Direc-
tors of Radnor Township voted to dismiss Appellant, John A. Mignone,
on the grounds of incompetence, persistent negligence and willful
violation of school laws.
64. On October 24, 1979 the Board of School Directors notified Appel-
lant that he had been dismissed for incompetency, persistent negli-
gence and willful violation of school laws, effective October 23,
1979.
65. On November-13, 1979 the Secretary of Education received a Petition
for Appeal on behalf of the Appellant.
66. On January 22, 1980-a hearing was held before a hearing examiner
appointed by the Secretary of Education.
289 1 295 4
DISCUSSION
Having reviewed the decision of the Board and the lengthy record of
the hearing before the Board, and having heard argument on behalf of the
Appellant and the Radnor School District, it ie our conclusion that the
charges against the Appellant are supported by substantial evidence. We
uphold the decision of the Board dismissing Appellant, John A. Mignone,
for incompetency, persistent negligence and willful violation of school
laws.
The record of the hearing before the Radnor School Board consisted
of approximately two thousand pages of testimony and exhibits. The
Secretary of Education, functioning as an administrative determinator of
fact, is not required to set forth findings specifically noting the
rejection, and reasons for such rejection, of each and every minor
allegation raised at the dismissal hearings of Appellant. Application
of Midwestern Fidelity Corp. 26 Pa.Commw.Ct. 211, 363 A.2d 892 (1976).
Rather, the Secretary's duty in promulgating an order is to set forth
the findings of fact which are essential to the validity of such order.
The findings must be sufficiently specific to enable the court in review-
ing that action to pass upon questions of law. Grant v. Board of School
Directors, Centennial School District, 43 Pa. Commw.Ct 556, 403 A.2d
157 (1979), Gottshall v. Blatt, 71 Dauph. 383 (1959). Sections 507, 704
of the Administration Agency Law, 2 Pa.C.S. §1507, 704.. Such admin-
istrative findings must be based upon the evidence and should state the
factual situation clearly and unequivocally. Appeal of Veterans Club
of Shona-Davey Home Assoc. of Blakely, 50 Lack. Jr. 29 (1949).-
29CI
290
On May 17, 1979 a twenty-four count proposed statement of charges
alleging incompetency, persistent negligence, and willful. violation of
school laws was submitted to the Radnor Township Board of School Direc-
tors which accepted them by resolution as valid charges warranting a
dismissal hearing for John A. Mignone. Seventeen separate hearings were
conducted in which numerous witnesses testified for the school district
and for Appellant. At the conclusion of the hearings the Board of
School Directors of Radnor Township found support for all twenty four
charges against Appellant and voted to dismiss him.
Appellant raises as his first issue an evidentiary question. He
contends that all of the evidence was of actions taken by the various
administrators which violated the spirit and purpose of the Teacher
Tenure Act and therefore cannot provide a valid basis for dismissal.
Appellant asserts that Principal Donald Anderson was 'unfair and mali-
cious in his effort to evaluate Appellant more rigorously than other
teachers. Appellant further states that no attempt was ,made by the
principal to ascertain whether the accusations he, as principal,, received
and recorded were valid. Appellant declares that he was the target of
the venom and malice of the principal.
We find that Appellant's allegations that the principal was "biased";
and "out to get him" are without merit. Not only does Appellant fail, to
point to any evidence in the record showing malice on the part of the
Iprincipal, or indicate any reason for such motive, he ignores the fact
that four other certified administrators also testified as to his incom
sir
291 297
petence. Here Appellant's argument is similar to that made by the
Respondent in Steffen v. Board of School Directors of South Middletown
Township School District, 32 Pa.Commw.Ct. 187, 377 A.2d 1381 (1977). In
that case, Mr. Steffen contended that there was a conspiracy on the part
of the school administration that led to his discharge, pot any actual
incompetency on his part. The Commonwealth Court held that it was Mr.
Steffen's "inability to perform his functions as an instructor or edu-
cator to the students, his inability to maintain order in his classroom
and his unwillingness to improve his performance...that led to his
discharge, not a conspiracy." Id. at 1385.
Even if, arguendo, the principal did harbor some personal malice
against Appellant, it is inconceivable to us that a principal could
persuade four certified administrators, students, parents, fellow-teachers
and Appellant's Department Chairman, totaling twenty-six witnesses, to
perjure themselves by testifying that Appellant was incompetent if
indeed he was not incompetent. We hold it was Appellant's inability to
maintain an apprcikiate ;:ducational atmosphere in his classroom, his
lack of rapport with his students, his violation of school rules and his
inability or refusal to improve his unsatisfactory performance of the
fall term 1978-1979 school year, as evidenced by his unsatisfactory
rating for the spring term of 1978-1979, that led his dismissal, not
any personal vendetta alleged to have been waged against him by the
principal.
Appellant next contends that the evidence itself, introduced
through the evaluations,_ anecdotal record and testimony does not provide
233 292
a substantial basis for dismissal because it was incomplete, inaccurate,
and not given in proper form. The Secretary finds this claim to be void
of merit. Section 11-1122 of the School Code, 24 P.S. §11-1122, provides
that:
The only valid causes for termination of a contract.:.(withprofessional employee shall be immorality, incompetency, intemper-ance, cruelty, persistent negligence, mental derangement...(and)persistent and willful violation,of the school laws."
Section 11-1123, 24 P.S. §11-1123, of the School Code further
provides that:
In, determining whether a professional employee shall be dis-missed for incompetency, (said employee) ahall be rated by anapproved rating system which shall give due consideration to per-sonality,.preparation, technique and pupilreactton...provided thatno unsatisfactory rating shall be valid unless approved by thedistrict superintendent."
In the instant case, Appellant received an unsatisfactory rating
for the fall and spring terms of 1978-1979 school year. [Exhibits S-20,
S-24]. Both of the unsatisfactory ratings were made on theDEBE-333
forms, an approved rating form. The District Superintendent, Dr.
Crosby approved both of the unsatisfactory ratings. We find that the
ratings, the testimony, and evidence introduced during the hearings,
provided substantial evidence for Appellant's termination on reasons of
incompetency.
In Thall Appeal, 410 Pa. 222, 189 A.2d 249 (1963) the court held
that two preliminary unsatisfactory ratings must be made before a profes-
sional employee may be dismissed for inconiPetency, stating that the
first rating is to serve as notice that improvement is needed. The
293 2 93
second unsatisfactory rating indicates failure to improve. The Secre-/
.tary of Education finds that Appellant received two valid unsatisfactory
ratings justifying dismissal on the basis of incompetency.
Appellant argues that it is against the weight of evidence in this
case to hold that his sixteen years of exc,, ary service abruptly fell
to such a low level of performance as to be rated unsatisfactory for the
1978-1979 school year. While the Secretary of Education concedes that
it is disheartening that a professional employee's competency deterior-
ated so rapidly, we note that Appellant had not been functioning in the
capacity of a full-time teacher for the last twelve of the sixteen prior
years for which he received satisfactory ratings. The Secretary also
notes that the standards for teacher competency are not different for
experienced teachers. Professional employees are credited with an
appropriate number of points on the basis of seniority in the rating
process, but prior satisfactory experience does not subject a teacher to
a different set of professional standards.
The Steffen case, supra, is similar to the instant case. The
teacher in that dismissal hearing appeal had eleven years of satisfactory
performance. His position, like Appellant's was changed just prior to
his unsatisfactory ratings. In affirming Steffen's dismissal for incom-
petency, the Secretary of Education held that "although he may once have
been competent to teach social studies, it is clear that during the
1974 - -75 school year his performance in that subject_ was unsatisfactory,
his students were bored and restless, and he could not maintain order."
3Uj 294
Steffen v. Bd. of School Directors of South Middletown Township School
District, Opinion of Sec. No. 259, July 6, 1976, aff'd 32 Pa.Commw.Ct.
187, 377 A.2d 1381 (1977). We find that the recor0 of the dismissal
hearings of Appellant, John A. Mignone, contain sufficient cred4le___.7
evidence to support the conclusion that Appellant was no longer func-
tioning competently as a professional employee. [FF No. 23, 31, 32, 34
to 36, 39-57]
The court has held that failure to maintain adequate cladsroom
control is serious enough in itself to warrant a rating of unsatisfactory.
English v. North East Board of Education, 22 Pa.Commw.Ct. 240, 348 A.2d
494 (1975). Appellant was specifically charged with failing and neglecting
to maintain discipline and control in his classrooms with espect to
groups of students under his supervision (School Distric't Charge No. 9).
[F.F. No. 39, 40, 42, 43, 49, 56],--------
In testifying at the hearing, Dr. Duffey, Assistant Superintendent
of Radnor School District, stated that his March 19, 1979 observation of
Appellant's physical science class presented "one of the most distressing
examples of t- aching" he had ever seen. He further commented that it
was his opinion that the class was "completely out of control." Inade-
quate preparation, lack of discipline, requests by students to transfer
from a class, and student expressions of dissatisfaction with a teacher's
performance have also been held to warrant an incompetency charge.
1
teffen, supra. [F.F. No. 49] The record indicates that evidence was
Introduced to demonstrate Appellant's defici ncies 1.11 most of the aforementioned
areas. Several students were switched, as per their own or their parents',
295 4
request, to another section of Appellant's class or to another teacher's
section. Numerous students testified at the hearing as to the ineffectiveness
of the Appellant's teaching performance.
The term incompetence is not limited to mean a mere lack of scho-
lastic ability to instruct a given subject. Horosko v. School District
of Mount Pleasant Township, 335 Pa. 369, 6 A.2d 866 (1939). Incompetency
has been justified as grounds for dismissal where pupils and parents
have complained about students who were unsuccessful in passing the
teacher's exams. Gurlich Township School District v. Korman, 31 D&C 197
(1938). Forty-six of Appellant's ninth grade physical science students
signed a petition requesting a pass or fail grade in lieu of taking the
departmental final examination, alleging that they did not cover the
same material as the students in the other teachers' sections. [Exhibit
34, F.F. No. 50]
Appellant's counsel also contends that irrelevant materials and
hearsay testimony were admitted into the record despite objections. It
is further argued that this information colored the minds of the Radnor
School Board so that they could not make an impartial judgment. A
careful review of the record reveals this contention to be without
merit. The Board had ample factual evidence consisting of the direct
testimony of many witnesses involving numerous incidents on which to
base its decision to dismiss Appellant. It has been held that the
admission of hearsay in support of other evidence in an administrative
hearing is permissible. Bd. of Public Education of School District of
Pittsburgh v. Pyle, 37 Pa.Commw.Ct. 386, 390 A.2d 904 (1978). Findings
3 94? 296
based solely on hearsay evidence cannot stand. Unemployment Bd. of
Review v. Cooper, 25 Pa.Commw.Ct. 256, 360 A.2d 293 (1976). The Secre-
tary of Education finds that the admission of hearsay in the dismissal
hearing of Appellant was permissible and even if, arguendo it was admitted
in error, the error would be deemed harmless in that the Board of School
Director's decision to dismiss Appellant was supported by substantial
evidence independent of that hearsay, Miller v. State Dental Council and
Examining Bd., 39 l'a.Commw.Ct. 613, 396 A.2d 83 (1979).
While the Appellant only raises issues concerning the validity of
his dismissal for incompetency, the Radnor School District also dis-
missed him for persistent negligence and willful violation of school
laws. [F.F. No. 64] Dismissal on either of these grounds requires
neither an unsatisfactory rating nor an anecdotal record.
Failure or neglect to teach constitutes grounds for dismissal on a
charge of persistent negligence. West Mahanoy Township School
District v. KAly, 156 Pa. Super. Ct. 601, 41 A.2d 244 (1945). Neglect
to teach is not confined to neglect to instruct or failure to provide an
adequate instructional program. Failure to perform the additional
duties of a teacher which are necessary for instruction to be effective
is a basis for a persistent negligence violation. Stohler v. Berks
County I.U. Board, Opinion of Sec. No. 260, Dec. 22, 1975. In Stohler,
like the instant case, the administration notified the teacher that
his work was not satisfactory and gave him suggestions and directives to
make his teaching more effective. Appellant, similarly notified and
advised, consistently failed to follow these directives. Id.
[F.F. No. 49]
297 3 3
In Stroman v. Board of School Director of Harrisburg County School
District, Opinion of Sec. No. 207, June 1, 1972, aff'd., 7 Pa.Commw.Ct.
418, 300 A.2d 286 (1973) the court held that failure to maintain rapport
with students, chronic lateness, and inability to cope with students
were sufficient to sustain a persistent negligence charge. Appellant
was observed as needing improvement in "achieves rapport" with students
five separate times in the 1978-1979 school year. [F.F. No. 39, 40, 42,
43, 48] The record also indicates that Appellant was not only late for
school on various occasions, but he was chronically late for specific
classes. [F.F. 53]
The Secretary of Education finds that Appellant's dismissal on the
grounds of persistent and willful violation of school rules was also
justified. Refusal or neglect to obey reasonable school regulations has
been held to constitute persistent and willful violation of school laws
warranting dismissal. Board of School Directors of Ambridge Borough
School District, Beaver County v. Snyder, 346 Pa. 103, 29 A.2d 34 (1943).
Failure to maintain lesson plans, and failure to submit attendance
sheets, was also held to justify dismissal in Barndt v. Board of School
Directors v. Wissahickon, Opinion of Sec. No. 255, Janoary 27, 1976,
aff'd. 28 Pa.Commw.Ct. 482, 368 A.2d 1355 (1977). Repeated refusals to
comply with school policies and procedures, and neglect to follow direc-
tions of superiors warranted removal in Tucci v. Olay Valley School Bd.,
Opinion of Sec. No. 281, Aug. 17, 1970. Leaving school premises without
notifying the office of departure and destination, making personal phone
calls contrary to school rules, parking contrary to the faculty manual
3T; 298
and attempting to obtain disciplinary records of students without author-
ity or permission were held to be persistent and willfu] violations of
school laws in Giangiacomo v. Pottsgrove School Board, Opinion of Sec.
No. 304, Jan. 17, 1977.
We find that- Appellant's chronic tardiness, neglect to require late
students to sign in, failure to report students cutting class, failure
to file appropriate substitute lesson plans, failure to follow proce-
dures for field trips, failure .o maintain order in his homeroom during
announcements, failure to follow rules regarding dismissal of classes,
and failure to adequately perform classroom duties constitute persistent
and willful violation of school laws. [F.F. 45, 53, 54, 55, 56]
Thus it is our opinion that the Radnor School Board's decision to
dismiss the Appellant on the grounds of incompetency, persistent negli-
gence and persistent and willful violation of school laws is supported
by substantial evidence in the record.
Accordingly, we make the following:
395299
ORDER
AND NOW, this 26th day of February, 1981, it is ordered
and decreed that the Appeal of John A. Mignone from the decision of the
Radnor Township School District is hereby dismissed.
C._Robert G. ScanlonSecretary of EducationCommonwealth of Pennsylvania
3q6
300
COMMONWEALTH OF PENNSYLVANIA
Department of Education
Florence Ryan,
Appellant
v. : Teacher Tenure Appeal No. 22-79
Board of School Directorsof Lackawanna nailsDistrict,
Appellee
OPINION
Florence Ryan, Appellant herein, has appealed from the
decision of the Board of Directors of the Lackawanna Trails
School District terminating her contract and dismissing her as
a professional employee on the grounds of persistent negligence.
FINDINGS OF FACT
1. The Appellant is a professional employee. She has been
an employee of the Lackawanna Trails School District, "the
ftrict", since July 1, 1966.
2. During the 1978-79 school year, Appellant was employed
as a sixth grade teacher at the District's Benton Elementary
School.
y notice dated June 21, 1978, Appellant was presented
with derailed statement of charges seeking her dismissal as
301 397
'a professiJnal employee on the grounds of immorality, persis-
tent negligence, and persistent and willful violations of school
laws. Appellant was advised in writing of the charges against
her and of the proposed public hearing on the charges to be held
pursuant to Section 1127 of the School Code (24 P.S. §11-1127).
(N.T. -9)
40W
4. Appellant was advised of her right to a hearing pursdant
to Section 1127 of the School Code and a hearing before the
District Board of School Directors, "the Board", was duly held
on July 23 and 24, 1979. At said hearing Ryan was represented by
counsel and was given full opportunity to cross-examine all1
witnesses and to present testimony and evidence on her own
behalf.
5. On October 29, 1979, at a duly advertised special met-
ing, the Board voted upon the three charges against Appellant,
dismissing the charges of immorality and willful violation of
the school laws, and sustaining the charge of persistent negli-
gence (See Minutes to Board Meeting of 10/29/79).
6. No Findings of Fact were adopted by the Board in reach-
ing its decision on the charges against Appellant.
7. On November 28, 1979, Appellant filed a Petition for
Appeal from the adverse decision of the Board with the Secretary
of Education.
3 z; 302
8. On May 18, 1979, Appellant ceased teaching in the Dis-
trict's Benton Elementary School and notnot return to her posi-
tion for the remainder/of the schoo0Aelar. (NT 130, 253, 264,
265)
\
9. Or. Monda , May Z1, 1979, a handwritten statement from
(Appellant's ph ician, Thomas McDonald, M.D., was delivered to
Appellant's superior, Mr.Williams, the principal of Bentonr/
Elementary School, by r. Conway, PSEA representative. The state-
ment was dated "5/18/79".and read "tension fatigue' advise one
to two weeks rest from work". (NT 130-132, 253, 264-265, School
District Exhibit 7)
10. In response to the District's request for further in-
formation, Appellant submitted a second statement from Dr.
McDonald, also dated "5/18/79", which read "ill, under my care,
and unab-l-eto, work since May 17, 1979". (N.T. 264 -265, School
District Exhibit 3-A)
11. A third notice regarding Appellant's absence was sub-
mitted to the District on or about May 29, 1979. That notice,
under the letterhead of Stanley W. Owen, M.D., read "due to
exiting (sic) eye condition, Mrs. Ryan will be unable to Per-
form her work duties until further notice". (N.T. 265, School
Distct Exhibit 8)
303
3IJJ
12. All medical statements provided to the District by
Appellant were delivered on her behalf by third parties. (N.T.
130-132)
13. There is no medical evidence in the record which
suggests that Appellant was medically able to perform her duties
from May 17, 1979 to the end of the school year.
14. District policy required the grading of the "habits
and attitudes" section of students' report cards with explana-
tory letter symbols. Appellant used a dual system of marking
and added check marks in addition to required explanatory sym-
bols. The Appellant was never instructed not to include check
marks on the report cards. (N.T. 133-137, 246, 265-266)
15. District policy required the generation of special re-
ports to be used to notify parents about the grade status of
not doing well in school. Appellant knew this policy
and had used the District's special certificate forms in the
past years, but did not use the special forms throughout the
1978-79 school year. (N.T. 137-140, 295-296)
16. Appellant telephoned and met with parents and communi-
cated to them by note instead of'using the required form. Ryan
received no warning or direction that her methods of parent
notice were unacceptable to her :superiors. (N.T. 266-267)
3id
17. For the first eight months of the 1978-79 school year,
Appellant divided her class into three reading levels. For the
remaining weeks of the school year, all the class was grouped
into a single reading level. Appellant testified that this was
done becuse the lower level children had completed their read-
ing material and she felt that the class was capable of being
combined into one group. (N.T. 233-236, 313-320)
18. A level of more advanced reading books to which certain
students in Appellant's class may have advanced did exist, but
Appellant had no reason to believe that such books might be
available for her class. Appellant's experience at the beginning
or the school year gave her reason to believe that such books
would not be readily obtainable for her classroom. (N.T. 140-
141, 233-236)
19. Appellant's classroom rule required that only one stu-
dent leave the cllssroom at any time. On occasion more than one
child was seen out of the classroom, sometimes unbeknownst to
Appellant. Classroom policy was later amended to require that
students sign before leaving the classroom. (N.T. 51, 68, 298-
300)
20. On one occasion during the 1978-79 school year, stu-
dents in Appellant's class were observed by Mr. Williams, Princi-
31.,E305
pal of the Benton Elementary School, playing on the school play-
ground without any supervision. Appellant testified that on said
occasion, she was observing the children from the school doorway
where she.. was waiting with other children for their bus except
for a brief period of time in which she used the lavatory
facilities. Mr. Williams did not take time on that occasion to
rebuke Appellant for her negligent conduct. Several days later,
Mr. Williams mentioned the incident to Appellant. (N.T. 197-199,
268-269).
DISCUSSION
Appellant has been dismissed from her position as a sixth
grade teacher with the Lackawanna Trail School District upon
the charge of persistent negligence. Additional charges of
immorality and persistent and willful violation of the school
laws brought against Appellant by the school administration
were dismissed by the Board.
The School Board has accorded Appellant her full oppor-
tunity to be heard in this matter. A hearing before the Board
was duly held upon proper notice at which Ryan was represented
by counsel and at which she was able to cross-examine all wit-
nesses and present testimony and other evidence on her behalf.
3,306
Subsequent to the hearing the Board dismissed two of the three
r charges against Ryan but upheld the remaining charge of per-
sistent negligence and, consequently, her dismissal.
In reaching its decision, the Board adopted no Findings
of Fact. Accordingly, the Secretary has no choice but to act
as the ultimate fact finder in this matter. In the absence of
factual findings by the Board, we must look to the entire
record before us to consider its support for the allegations
of misconduct. We believe this approach to be in accord with
dicta set forth in a recent decision of the Pennsylvania4
Supreme Court, Strinich v. Clairton School District, No. 80-1-137
(Sup. Ct. July 2, 19 1), which deals with the issue of the Secre-
tary's scope of review in teacher tenure appeals.
Persistent negligence is a valid cause for termination
of a tenured school professional employee. Section 11-1122
of the Public School Code, 24 P.S. S11-1122. The burden of
proof to sustain such a charge rests upon the District. Thomas
v. Dalton Borough School District, 30 D&C 213 (1937). The evi-
dence must also support the two elements of the charge: one,
an omission to act or an act in violation of duty, Appeal of
Deane, 26 Northumberland Law Journal 17 (1956); and two, con-
tinuing and consistent negligence. Lucciola v. Commonwealth
of Pennsylvania, 25 Pa. Cmwlth. Ct. 419, 360 A.2d 310 (1976).
307 31 .3
The written statement of charges originally presented
to Ryan detailed six bases for the allegation of persistent
negligence. CounSel for the District has conceded that two
of the bases are not supported by the evidence. Accordingly,
our review of the evidence is limited to its support for the
remaining bases.
The first of the four allegations underlying the instant
charge is that Appellant failed to attend school and teach
her students without good cause from May 17, 1979 through the
end of the school year. There is no question that Appellant
was not present during the period from May 18, 1979 through
the end of the school year. The only question is whether her
absence was for good cause and with medical excuse.
The record shows that Appellant was first absent from
school on Friday, May 18, 1979. On Monday, May 21, 1979, a
statement from Appellant's physician, Thomas J. McDonnell,
M.D., was delivered to Appellant's superior, Mr. Williams,
the Principal at Benton Elementary School, by Mr. Conway, the
PSEA representative. The hand written statement, set forth,
on a prescription blank dated 5/18/79, read: "Tensi_cc
fatigue'. Advise 7 to 2 weeks rest from work". S.D. EX. 7.
After Appellant was advised '..:hat the District was not satis-
fled with the excuse that had been provided, a second state-
31.; 308
ment from Dr. McDonnell was also received by Appellant's
superiors. That statement, also dated 5/18/79, read: "Ill,
under my care, and unable to work since May 17, 1979". S.D.
Ex. 3a. The District received a third notice regarding
Appellant's absence on May 29, 1979. That notice forwarded to
the District by Appellant's attorney was under the letter-
head of Stanley W. Boland, M.D., and read: "Due to her exiting
(sic) eye condition, Mrs. Ryan will be unable o perform her
work duties until further notice." School District Exhibit 8.
The district acknowledges rec4at of all three notices
regarding Appellant's state of health, but insists they do
not adequately explain the specifics of her medical condition.
Further, the district complainu that Appellant's treatment
of this issue was cavalier in that she arranged for the medi-
cal notices to be delivered to her supervisors through third
parties rather than directly. The district's arguments are
Under tre School Code provision deoling with reimburse-,
ment for sick leave, a district "may'require" an absent emplo-
not convincing.
yee:
"to furnish a certificate from a physician or other prac-titioner certifying that said employee was unable to per-Gorm his or her duties during the period of absence for
compensation is required to be paid [under theSchool Code] ". 24 P.S. 11-1154.
309
31,;
Although the quoted provision is not squarely applicable
to the instant charge of persistent negligence, it does pro-
vide guidance as to the type of medical excuse which would
normally be expected of a professional school employee. The
statements of Appellant's physicians clearly supply the scope
of information called for by the statutory language. The two
statements of Dr. McDonnell read together indicate that, in
the opinion of her medical doctor, Appellant was suffering
from a condition of "tension fatigue", and that she was unable
to work from. May 17, 1979 for a period of two weeks. Dr. Bo-
land's statement documents that, in the opinion of a physi-
cian, Appellant would be unable to perform her duties for a
continued period ofabsence.
There is no question that the district was made aware
in an adequate and timely fashion that Appellant's absence was
the. result Of a documented medical condition. Appellant's
repeated efforts to comply with the district's request for
additional information indicates a responsible attitude toward
her duty to advise the district about her absence. The record
provides no evidence to support a finding that Appellant was
medically able to perform her duties from May 17, 1979 to the
end of the school year. There is no showing that she de-
liberately abused the sick leave policy of the district. The
mere fact that she delivered the medical statements through a
third party rather than directly adds no support to the Dis-
trict's allegation.
3 310
Indeed, Appellant's reliance on a third party was clearly
appropriate in light of the proferred diagnosis of "tension
fatigue" which implies the need for her dependence on others.
On the record before us, we find that Appellant's medical
statements_ were timely delivered and duly supplemented upon
the adminiStration's request. In the absence of any medical
evidence challenging the legitimacy of those statements, there
is no basis for a finding that Appella.
constituted
Appellant's dismissal on that allegation.
failure to teach
persistent negligence, and, we do not sustain
The second allegation of misconduct by Appellant relates
to 1-ler disregard of school policy with regard to notice to
parents.
One aspect of this allegation concerns a school district
policy requiring that the habis and attitudes section of
student report cards be graded with certain letter symbols.
Appellant was dismissed, in part, on the grounds that she
"failed to use the required system of marking for 'part -tint
subjects, skills and habits' using only check marks instead
of required explanatory symbols." Statement of charges, Item
2c. But the evidence, including the testimony of the school
principal, Mr. Williams, does not indicate that Appellant .
failed to use the required explanatory symbols, but rat :r
that she used a dual system of marking which combined check
marks with the required symbols.
311
There is no evidence of Appellant's willful and complete
deviation from established marking policy. The record provides
no indication that Appellant was ever instructed not to
include check marks on the report cards or that she was ever
admonished by her supervisors for doing so. We find no sub-
stantial evidence that Appellant knew or had reason to believe
that her use of dual notations was misleading or confusing to
parents. In sum, the evidence shows only that Appellant modi-
fied her compliance with district policy by adding check_marks
to the required letter symbols.
District policy also required the generation of special
reports to be used to notify parents about the grade status of
children not doing well in school. Appellant knew of this
policy and had used the District's special triplicate forms in
past years. The record indicates that Appellant did not use
the special forms throughout the 1978-79 school year, but
instead telephoned and met with parents and communicated to
them by note. The evidence does not indicate a total disregard
by Appellant of her duty to notify parents regarding their
children's progress; it indicates only her failure of strict
adherence to District procedures relating to the prescribed
manner of doing so. Again, the record indicates no warning or
direction to Appellant that her methods for assuring parent
3312
notice were unacceptable variations of District policy. It
only shows that Appellant, in good faith, complied with the
spirit of the special report policy.
On the basis of the record before us, we see no substan-
tial evidence to support a finding of persistent negligence
based upon Appellant's charged misconduct in providing notice
to parents. The evidence shows only Appellant's failure of
strict adherence to the letter of school policy by her use of
check marks on report cards and her non-use of special tripli-
cate notice forms, both in the absence of any specific con-
trary direction from her supervisors. Her modified compliance
with school policy did not persist after warning from school
authorities. There is no evidence of any unwillingness on
Appellant's part to follow the reasonable directives of her
supervisors or to comply with their direct orders. According-
ly, we see no basis to find that these acts either challenged
or defied the authority of Appellant's superiors, or that
these acts in themselves were serious enough violations of
school policy to justify dismissal on the ground of persistent
negligence. Compare Clairton School District v. Strinich ,
supra.
313313
The third allegation against Appellant relates to her
grouping of her class for reading instruction. For the first
eight months of the 1978-79 school year, Appellant divided her
class into three reading levels; for the remaining weeks of
the school year, all of the class were grouped into a single
reading level. According to Appellant's testimony, this was
done because the lower level children had completed their read-
ing material and she felt that the class was capable of being
combined into one group. According to the District,
Appellant's deci7ion to form a single reading group, for child-
ren capable of reading at a wide range of levels, constituted
persistent negligence.
The District contends that Appellant's failure to make
appropriate arrangements for the differences in the children
she taught, justifies her dismissal. The District argues:
While in a younger, more inexperienced teacher,such acourse of conduct might be viewed as incompetence, itis submitted that, in a teacher with such broad exper-ience as Ryan in the District, the course of conductex-emplifies a continuous and progressive neglect of dutyto afford an adequate education to the children in hercharge. The District's Brief on Behalf of the Administra-tion of the Lackawanna Trails School District in Opposi-tion to Appeal, at page 17.
The District provides no authority for this novel conten-
tion. We see no merit in the suggestion that Appellant's
experience creates a duty which might not otherwise exist. As
314
stated in Gene A. Pasekoff v. Armstrong School District,
Teacher Tenure Opinion of the Secretary of Education, No.
3578,:
. . . to support a charge of persistent negligence, theBoard must demonstrate a duty which appellant was to per-form, and that the duty was adequately communicated toappellant.
The District has offered no evidence of an established
school policy that was violated by Appellant's'single reading
group. Although testimony indicates that a level of more ad-
vanced reading books existed, there is no evidence that such
books were available for Appellant's class. Indeed, testimony
indicates that on the basis of her experience at the beginning
of the school year, Appellant had every reason to believe that
such books would not be readily available for her class. On
the basis of the record, we are hard pressed to view the
Appellant's decision to form a single- reading group as persis-
tent negligence. Accordingly, we find there to be no substan-
tial evidence adequate to dismiss the Appellant on this
Charge.
Finally, the fourth basis for Appellant's dismissal re-
lates to her alleged failure to adequately supervise the child-
ren under her direction. This allegation is based upon charges
that Appellant failed to institute and enforce a system to
323315
ensure that her students would not leave her classroom without
proper supervision; that students under Appellant charge were
discovered out of the classroom during class hours without any
supervision; and,_that on one occasion, Appellant permitted a
group of students in her charge to play 'on the Benton Elemen-
tary School playground and to utilize playground equipment
without any supervision for a period of at least ten minutes.
The record fails to support these allegations with substantial
and convincing evidence.
The testimony of Appellant's students, called by the
administration, indicates that the classroom rule existed
which required that only one student leave the classroom at
any time, but that on occasion more than one child would Sneak
out of the classroom, apparently unbeknownst to Ryan. The
testimony also indicates however, that this policy was later
amended to require that the students sign before their
departure, presumably to correct its abuse_by the students.
The record also indicates one instance when a group of
students were observed unsupervised on the playground. The
testimony of Mr. Williams, the school principal, was that the
children were without supervision for at least ten minutes.
However, Appellant's testimony suggests that she had been
32316
observing the children from the school doorway where she was
waiting with several other children for their bus,-except for
a brief period of time during which she used the lavatory
facilities. Mr. Williams testified as to his great concern
with the safety of the unsupervised children; however, he also
acknowledged that he did not take time on that occasion to
rebuke Appellant for negligent conduct. He admitted that he
did not raise the subject to her until several days later. In
light of his stated concern about the gravity of Appellant's
alleged negligence, it is difficult to imagine the reason for
his delay in commenting to her about conduct. Nonetheless, the
record in this matter provides substantial evidence of one
incident during which Appellant left sixth-grade children
unsupervised on the playground for a short period of time.
There is no question that such conduct was negligent iii that
it subjected the children to the potential of grave harm from
their unsupervised use of dangerous playground equipment. The
issue is whether such an incident in and of itself justified
Appellant's dismissal on the charge of persistent negligence.
The case law indicates that as a "general proposition"
persistent means "continuing" or "constant" and that "per-
Hsistoncy" invokves-e-i-ther-e-ser-ies-of Indxv ua l-dn i en s or
3 9 Th317
one incident carried on for a substantial period of time.
Lucciola v. Commonwealth, 25 Pa. Cmwlth. 419, 360 A.2d 310
(1976). With that definition in mind, we do not believe the
requirement of persistency has been met in the instant casg....__
We do not find that the School District has met its burden to
show a continuing course of negligent conduct. The mere allega-
tion of repeated incidents without credible evidentiary
support does not warrant Appellant's dismissal.
On the basis of the record before us, we do not see sub-
stantial evidence that Appellant engaged in a continuing course
of negligent conduct. There has been no showing of Appellant's
persistent refusal to be responsive to the legitimate requests
of the Administration or to abide by school laws. There has been
no evidence of an attitude on the part of Appellant of arrogant
disregard of the school policy or tota:( disregard for the safety
of the students under her case. Accordingly, we find insufficien
evidence in the record to support the charge of persistent
negligence, and we make the following:
3;318
ORDEfl
AND NOW, this 4 day of January 1982, it is hereby
Ordpied and Decreed that the decision of the Lackawanna Trail
Schol District dismissing Appellant on the grounds of persis-
tent negligence be reversed.
ROBERT G. SCANLONSecretary of Education
319
C01114011WEALTE OF PENNSYLVANIA
DEPARTMENT OF EDUCATION
RaymoLi M. Pecuch,Appellant
v. Teacher Tenure Appeal No. 23-79
California Area SchoolDistrict,
Appellee
OPINION
Raymond M. Pecuch, Appellant herein, has appealed from
the action of the California Area School District removing
him from his position as Principal of the California Area
;fiddle School and appointing him as Assistant Principal
at the California Area High School which action, taken without
his consent, he contends is a demotion in positiOn.
FINDINGS OF FACT
1. Appellant, Raymond M. Pecuch, is a professional
employee of the California Area School DistriCt, and is duly
certified as a secondary school principal in the Commonwealth
of Pennsylvania. He has served as a principal in the Calif-
ornia Area School District for the past fifteen years, and
was appointed as principal of the California Area Middle
-Sshool_in_1_9_77-__Transcript_of Hearing before School Board
(TB) 19, Transcript of Hearing on Appeal (TA) 19, 20, 28.
39 u
320
2. The California Middle School consists of grades six,
seven, and eight. The Middle School building also houses
grades three, four and five. Grades one and two are housed
in the Phillipsburg Elementary School; grades nine, ten,
eleven, and twelve are in the High School. On August. 15,
1979, Appellant was Principal of the Middle School; Mickey
Bodnar was Elementary School Supervisor at the Middle School,
and John I.upets was Principal of the High School. TA 20, 22.
3. In February 1977, the California Area School District
submitted an application for pre-approval to establish a middle
school to the Pennsylvania Department of Education. The appli-
cation was compiled by Appellant and named Appellant as Building
Principal. The application was subsequently approved by the
Department of Education. Pecuch Exhibit No.-s'2, TA 21.
4. The Professional Personnel Certification and Staffing
Policies and Guidelines of the Pennsylvania Department of Edu-
cation, 1975, provide that persons duly certified as elementary
or secondary principals may be assigned as principals at an
approved middle school. Appellant is a duly certified secondary
principal. Appellant is not certified as an elementary principa:
Appellant's Exhibit H, TB 19, TA 26.
5. As prlincipal of the Middle School, Appellant occupied
an office known and designated as the "Principal's Office",
and had no superior at the Middle School building. He was
responsible for supervising all the professional employees
for grades three through eight; he signed requisition orders
as Principal of the Middle School; he was responsible for
/321 3 9 *-1
curriculum development; he was in charge of public relations
and the athletic program; he was responsible for assigning
substitute teachers; he was involved with the publication
of the middle school yearbook; he was responsible for fire
and other drills at the middle school hailding. TB 32,
35-38, TA 29, 30.
6. As principal of the middle school, Appellant did
not rate the teachers in grades three, rear and five, in the
school building because he was not duly certified as an
elementary school principal. As a duly certified secondary
school principal he did observe and rate teachers in grades
six, seven and eight. TB 19, 20.
7. During Appellant's period.as principal of the
middle school, Mickey Bodnar, a duly certified elementary
principal, was responsible for observing and rating teachers
in grades three, four and five. TB 21, TA 29.
8. Prior to August 15, 1979, no objection or complaint
was ever made to Appellant by either the School Board or by
Dr. James R. Johnston, the Superintendent of the School
District, regarding .the division of responsibility for
observing and rating the teachers in the middle school
Building, TA 29.
9. On August 15, 1979, the School Board adopted
motions stating "that Mr. Pecuch be named as Assistant
rincipal at the Senior nigh School:, that Mr. Bodnar be
named Principal--kindergarten to 8th grade", and "that [the
Board) create the position of Assistant Principal--kindergarten
3 9
322
to 'ph grade." School District Exhibit C.
10. On or about August 22, 1979, Appellant physically
moved into an office at the high school. The office he
occupied was known and designated as the "Assistant Principal's
Office". The Appellant began to work under the direction and
pursuant to orders of John Kupets, Principal of the High School.
Mr. Kupets occupied the office known and designated as the
"Principal's Office". TA 29-31.
11. 3y letter of August 23, 1979, Appellant, through his
attorney, notified the School Board that he did not consent to
the proposed transfer in position which he contended was a
demotion, elld demanded a hearing before the School Board in
accordanc.2 with the Pennsylvania Pub14,-! School Code-
12. On August 29, 1979, John Kupets was graLtod a
sabbatical leave by the School Board and commenced that leave
two days lz.Ler. After Mr. Kupets' departure, Appellant
continued to act as Ar,sistant Principal, working closely with,
and uncir the supervision of Dr. Johnston. TA 29, 32, 42.
13. By letter of September 10, 1979, Appellant through
his attorney, made a second deMand for a hearing. Pecuch
Exh:i.bits No. 4 and No. 5.
14. By letter of September 12, 1979, Dr. Johnston
.:-.1vise6, Appellant "to assume immediately all administrative
duties at: the high school until notified to the contrary."
Appellant %,,Its never elected or transferred to the position
of princ1pei at the !-!4.gh school by School Board action.
School District D, TB 55, 56, TA 33-35, 42.
32332J
15. Appellant remained at the high school until September
20, 1979 at which time, on the advice of his doctor, John C.
Shaver, M.D., he ceased working. As of January 30, 1980, the
date of oral argument and testimony before the Hearing Examiner,
Appellant remained out on sick leave. TA 32 33.
16. During the period from. September 4 to the 20th,
Appellant did not have the title of 'Principal" at the high
school. At that time, Mr. Kupets was on leave and there was
no principal at the high school. TB 55, TA 2, 33.
17. By letter of September 20, 1979 from the California
Area School District signed by Shirley Zahand, President, and
John J. Vitchoff, Secretary, Appellant was advised that in
accordance with his request, he would be granted a hearing in
accordance with the School Code. The School Board further
advised Appellant that in their opinion no demotion had in
fact occurred, but thata move of certain administrative
and supervisory personnel was made in the best interest of
the School District. School District Exhibits A and B.
18. On September 24, 1979, a hearing was held before
the School Board. Appellant was ill and did not appear,
but was represented by counsel who requested the right to
a continuance should Appellant's testimony be needed.
Dr. Johnston was the only person who testified.
19. Dr. Johnston testified that the transfer of
Appellant to the position of Assistant Principal at the
high school, the appointment of Mr. Bodnar as Principal- -
kindergarten to 8th grade and the creation of a position
324
of Assistant Principal--kindergarten to 8th grade reflected
a reorganization of a portion of the entire school system.
No plan was submitted to the Department of Education regarding
such a reorganization. TB 15-17, 44.
20. Dr. Johnston testified that all reassignments in
position made by the School Board were all lawful He
testified that as principal of the middle school, Appellant
was unable to rate elementary teachers in the middle school
building. TB 17-20.
21. Dr. Johnston testified that the Appellant had in no
way been derelict in the performance of his professional
duties, and to his knowledge Appellant had never received
an unsatisfactory rating as a teacher or principal. TB 31.
22. Appellant did not suffer any economic loss as the
result of the transfer; his salary and fringe benefits were
not decreased or effected thereby. TB 20, 21.
23. On or about October 17, 1978 medical statements
dated September 4, 1979 and October 12, 1979 regarding
Appellant's medical condition and his need to continue sick
leave until at least December 1, 1979 were provided to the
school board.
24. On October 17, 1979, the School Board voted to
hire Thomas Knight as "Temporary Assistant Principal" at
the senior high school during the absence of !r. Pecuch.
Pecuch Exhibit
32533i
25. By letter of October 25't 1979, Appellant, through1
his attorney, aavised the School Beard, that he had not
received notice of a decision on Appellant's challenge to
the transfer in position and that unless such decision was
received within ten days, Appellant would file an action of
mandamus in the Washington County Court of Common Pleas.
On November 26, 1979, such an action was filed. Pecuch
Exhibit J.
26. On November 20, 1979 further information regz. .ding
Appellant's medical condition was sent to Dr. Johnston and
Mrs. Zahand, President, Board of School Directors. Pecuch
Exhibits D and E.
27. By letter of November 23, 1979 from Dr. Johnston,
Appellant was advised that the School Board had passed a
motion on November 20, 1979 stating that:
"Pending an immediate resprise to the recentletter which was sent from \the Superintendentto Mr. Pecuch concerning his medical status,we terminate Mr. Pecuch's relationship withthe school district, specifically his salaryand fringe,)enefits". Pecuch Exhibit F.
28. There is no dispute that Appellant's relationship
with the school district, terminated per letter of November 23,
1979, has been reinstated and that the issue of di: ;ssal is
therefore moot.
29. By letter of November 23, 1979 from Dr. Johnston,
Appellant through his attorney was advised that:
"The California Area Board of School Direc-tors has directed, as a result of the 24thof September hearing, the assignment of Mr.Pecuch to temporary administrative duties
:;326
33;
at the. high school as outlined by the Super-intendent and consistent with his certifica-tion. Pecuch Exhibit G.
30. -On November 29', 1979 Appellant filed an Appeal
from Demotion and Dismissal with the Secretary of Education
pursuant to 24 P.S. §11-1131.
31. On January 30, 1980 a hearing on the Appeal was held
before a Hearing Examinez acting on behalf of the Secretary.
32. Additional tes,"imony was taken at the hearing on
Appeal pursuant to regulations at 22 Pa. Code §351.8.
327 333
DISCUSSION
The Appellant contends that he was demoted without his
consent, without a prior hearing, without a detailed statement
of charges, and without adherIRCe in other respects to the
requirements of a lawful demotion under the School Code, 24
P.S. §11-1151. Appellant further contends that the demotion
was an(acbitrary and capricious action by the School Board,
and that Appellant is therefore entitled to be reinstated to
his former pocition as Principal of the California Area Middle
School. It is the contention of the School District tiat no
demotion in fact occurred, and that the transfer of Mr. Pecuch
to a position-at the California Area High School.was a reassignment
to a position equal in responsibility made in accordance with
the judgment and discretion of the Board.
The Aug' .t 15, 1979 action of the School Board transferring
Appellant from his position as Principal of the Middle School
to Assistant Principal at the High School clearly was a demotion.
It removed Appellant from his position as the chief administrator
at the middle school building to.a secondary position at the
High School. It is irrelevant that his salary remained the
same: his status and authority were reduced. The School Dis-
trict argues that after the principal at the high school began
his sabbatical leave, Appellant was assigned to the position
of principal at the high school and therefore he suffered no
demotion. In support of this the Board points to the September
12, 1979 letter from Dr. Johnston instructing Appellant to
328 334
"assume . . . all administrative duties at the high school,"
and the November 23, 1979 letter characterizing Appellant's new
position as an assignment "to temporary administrative duties
at the high school". However, the testimony of Dr. Johnston
at the September 24, 1979 hearing indicates that the Appellant
had not been assigned to the position of principal of the high
school; the principal was on sabbatical leave. Further, when
the School Board acted on October 17, 1979 to replace Appellant,
who was out sick, they appointed a temporary assistant
principal, not a temporary principal or temporary chief adminis-
trator. This is additional evidence that Appellant was not
viewed by the School Board as having full.administrative authority0
for the high school. Appellant's transfer from a position as
chief administrator to one as an assistant was a demotion in
status.
Appellant's illness, and the teacher's strike which occurred
during'his brinf time of service at the senior high school,
cloud the picture of his exact duties and responsibilities in
his new position. But even were he to have served as de facto
principal at the high school, this would still have been a
temporary principalship. Mr. Kupets remained as principal,
entitled to resume that position at the end of his sabbatical
leave. The temporary character of Appellant's position as
compared to his former permanent status also resulted in a
reduction in importance and prestige and, hence, a demotion.
Department of Education v. Kaufmann, 21 Pa. Commonwealth 89,
343 A.2d 391 (1975,.
329 33:;
Once the School Board's action is considered a demotion,
the Board has the duty to make its reasons) for the demotion
clear and apparent. Smith v. Darby, 388 Pa. 301, 130 A.2d 661
(1957), Tassone v. School District of Redstone Township, 108
Pa. 290, 183 A.2d 536 (1962).
The School Board herein has indicated its reason was to
reorganize the administration of its school system for the
purpose of more efficient utilization of its certified admin-
istrators. The reassignment of Appellant and Mr. Bodnar was a
result of a consolidation of the administration of the Middle
School and the kindergarten to 5th grade program. Mr. Bodnar,
previously the Elementary School Supervisor and a certified
elementary principal, was placed in charge of the entire
elementary program--kindergarten to 8th grade. A new position
of assistant principal--kindergarten to 8th grade was created.
Appellant, who was not certified as an elementary principal,
was placed in the position of Assistant Principal of the High
School which was consistent with his own certification as a
secondary principal.
The law is clear in Pennsylvania that the School Code does
not prohibit a school board from demoting a professional employee
or reassigning a professional employee to another class or school
in accordance with its judgment and discretion. Smith v. Darby,
Supra. School boards have the power to assign their personnel
to other positions and a professional employee has no vested
right in any particular position. Smith, Id; Appeal of Santee,
307 Pa. 601, 156 A.2d 30 (1959); Wesenberg Case, 346 Pa. 438,
330 33d
31 A.2d 151 (1943); Commonwealth ex. rel Wesenberg v. Bethlehem
School District, 148 Pa. Super 250, 24 A.2d 673 (1942). Also,
the courts have consistently upheld the right of a school board
to abolish a position or office, transfer nd/or assign an
employee Lo a new position and reorganize a realign staff for
more efficient administration. Smith v. Darby, Supra; Lakeland
Joint School District v. Gilvrry, 3 Pa. Commw. 415, 283 A.2d
500 (1971); Bilotta v. Secretary of Education, 8 Pa. Commw. Ct.
631, 304 A.2d 190 (1973); Lucostic v. Brownsville Area School
District, 6 Pa. Commw. Ct. 587, 297 A.2d 516 (1972); Tassone
v. School District of Redstone Township, Supra.
In the instant case, the school board has mA its
responsibility of showing the reason for its action. It con-
tends that efficient administration was the reason far its
action. The burden then shifts to Appellant:
"For the demotion to be overturned on other thanprocedural grounds, the employee has the burden ofproving the action to be arbitrary, discriminatory,or founded upon improper considerations." (CitationsOmitted) The Board of Public Education of theSchool Dist ict of Pittsburgh v. Thomas Pa.
Commw. Ct. , 399 A.2d 1148 (1979).
The burden is a heavy one but Appellant has met it.
Whether a demotion is arbitrary is premised upon whether
there is a reasonable basis for the Board's action.
"An arbitrary action is one based on randomor convenient selection rather than on reason.Moreover, an action is not arbitrary merelybecause it does not effectuate a policy in themost effectuate manner, so long as it has somerational basis." Thomas, 399 A.2d at 1150.
The Board's alleged basis for reassignment of Appellant was
the desire to consolidate responsibility for professional
331 3
employee supervision. The Board contends Appellant's
reassignment was part of a reorganization plan. However,
the board's actions did not consolidate administrative
responsibility and there is no evidence of planning for a
school district reorganization. Instead of a Middle School
Principal they have a Principal--kindergarten to 8th grade.,
Instead of an Elementary School Supervisor they have a new
position--Assistant Principal--kindergarten to 8th grade.
Where there were two administrative positions there are still
two administrative positions. The board appears to have done
nothing but change the names of titles of administrative
positions. There still exists an assistant principal position
as well as a principal position at the high school. These
facts do not show an overall consolidation of administrative
positions as claimed by the S 'Iool Board.
The Board has shown no plan for reorganizing administ_ation
in the district. Quite the contrary the Board's actions appear
to be without any coherent plan. Appellant has shown that the
reason advanced by the Board is arbitrary. Thus the Appellant's
demotion must be overturned.
Although Appellant has prevailed on the argument of
arbitrariness we note several other points which are worthy
of our discussion. The arguments of Appellant suggest that
the demotion was improper because the demotion was not based
on any deficiency or failing on his part. We must note that
this argument fails to recognize that a School Board may demote
an employee regardless of his capabilities or job performance.
Numerous demotions have been upheld by the courts which were
clearly not disciplinary in nature.- See, for example, Smith
v. Darby, §42r; Tassone v. School District of Redstone Town-
ship, Supra T Lucostic v. Brownsville Area School District,
Supra, Bi3otta v. Sec'y of Education, Supra. The demotion in
the instant case was not\premised on Appellant's, job perform-
ance; poor job performance is not a legal requirement to sustain
a demotion. The record shows that the School Board considered
Appellant a qualified and capable supervisor.
We must also note that this record is replete with
repeated instances of procedural laxity and impropriety on
the part of the School Board such as could require sustaining
Appellant's appeal on procedural grounds: Appellant was not
afforded a hearing prior to his demotion; Appellant's first
request for a hearing was ignored; the hearing was not scheduled
until after his second request; Appellant was not provided with
a full and detailed statement of charges prior to his demotion;
Appellant was not given timely notice of the Board's decision
after the hearing on September 24, 1979; Appellant did not
receive notice of the Board's decision until after he filed
a Complaint in Mandamus in the Court of Commonjloleas of
Washington County on November 26, 1979 more than two months
after the date of the hearing before the School Board; by
letter 'of November 23, Appellant was terminated by the School
Board without any regard for the procedures required under the
School Code; and also by letter of November 23, Appellant was
assigned to a position which we have determined to also be a
demotion from his position as middle school principal.
333 3 3j
There is no doubt that Appellant's procedural rights in
this entire matter hL7e been repeatedly ignored or violated
by the School Board. It is settled law in this Commonwealth
that the non-consensual demotion of a professional employee
cannot become effective until after a hearing before the school
board, Smith v. Darby, Tassone v. School District of Redstone
Township, Supra. Although the hearing in this case was untimely
with regard to the effective date of his demotion, we do not
have a complete absence of compliance with the procedural
mandates of the school code. Appellant has now been given a
hearing. To remand on procedural grounds for another hearing
after proper notice of charges would accomplisl-, nothing but
delay. Appellant has already shown he can prevail on the
merits.
Having determined that Appellant must be restored to his
position as a principal there is no additional relief for
Appellant's procedural injury. Appellant's salary was not re-
duced, therefore he suffered no lost wages during the period
prior to the Board's completion of the hearing process with
regard to his demotion. We have no authority to award
Appellant reimbursement for the attorney's fees he has expended
to correct the procedural laxity of the Board. School District
of the City of York v. Allison, Pa. Commw. 406 A.2d
1196 (1979,). It is true that no hearing before the Board has
been held on the termination of.Appellant on November 23, 1979
or the November 23, 1979 assignment to "temporary, administrative
duties at the high school." Counsel for the Appellant has
334
conceded that no purpose would be served by remanding this
case to the school board for another hearing on these matters.
As of the date of the hearing of the appeal before the Depart-
ment of Education, Appellant had not performed any duties at
the high school since his November 23, 1979 assignment and
the termination by the School Board has apparently been mooted
by subsequent events. We do not condone the procedural errors
committed below by the School Board, but there exists no remedy
for the harm suffered beyond reinstatement.
In accordance with the following, we make the following:
ORDER
AND NOW, this 9th .day of September , 1980, it is
h, reby Ordered and Decreed that the Appeal of Raymond M. Pecuch
from the action of the Board of School Directors of the Calif-
ornia Area School District demoting Mr. Pecuch from his
position as Principal to the positi f Assistant Principal
is sustained.
/7)YtjLV...Robert G. ScanlonSecretary of Education
335
34
IN THE OFFICE OF THE SECRETARY OF EDUCATIONCOMMONWEALTH OF PENNSYLVANIA
FREDERICK W. BROWNE,Appellant
v. Teacher Tenure
ABINGTON SCHOOL DISTRICT, Appeal No. 24-79Appellee
OPINION
Frederick W. Browne,appellant herein, is appealing the
decision of the Board of School Directors of the Abington School
District which dismissed appellant as a professional employee
of the district on grounds of incompetency, persistent negligence
and persistent and willful violation of school laws pursuant to
S1122 of the Public School Code. The Adjudication resulted from
the recommendation and charges of the Superintendent o the
Abington School District lodged on February 13, 1979, and after
four] teen public hearings before the Board between June 5 and
November 8, 1979. This appeal followed.
FINDINGS OF FACT
1. Mr. Browne is a tenured professional employee,
certified to teach secondary English and has been employed.
336
by the School District for 13 years (TR-599-600, 601,
1032)1
2. During the 1977-1978 and 1978-1979 academic years,
Mr. Browne was emikoyed as a senior English teacher at the Abington
High School, South(Campus (the "High School") (TR-32, 600-601).
3. Senior English classes are divided into Levels
1, 2 and 3 based upon an individual student's reading and writing
skills and abilities (S -l; TR-32, 268, 603). In addition, there
is an honors program (S -l; TR-32, 603),
4. In the 1977-1978 school year, Mr. Browne was assigned
to teach one Level 1 senior English class, two Level 2 senior
English classes and two Level 3 senior English classes (TR-604).
5. Mr. Norman Schmid is the principal of the High
School and is charged with the responsibility of evaluating the
pert ance of each staff member (TR-55-56, 58).
6, The certified evaluators at the High School include,
in addition to Mr. Schmid, Mr. William J. Lucian, Assistant Prin-
cipal, with responsibilities for the observation and evaluation
of the faculty (TR-414-413); Mr. G. Donnon Mcginley, Assistant
PrinCipal, with responsibilities for student discipline and faculty
1. All references to the transcript of this hearing will bepreceded by the prefix 'QTR ". All pages of the transcriptare numbered consecutively regardless of volume. Exhibitsare marked to reflect the party that introduced it -- Board
r.n"), S-Terintendent ("S") or Browne (BR").
337
observation (TR-444-445); Dr. Elayne Zimmerman, Assistant Principal
with responsibility for discipline and faculty observation (TR-519-
521); and Mr. Charles E. Schneller, Jr., the English Department
Chairman (TR-256-257, 266-267, 269). Following any observation,
the observer is required to prepare an Observation Report which
generally describes the class activity, and sets forth commenda-
tions and spe'ific recommendations for improvement of teaching
methods. A copy of this report is transmitted to the teacher who
is entitled to meet with the &.iserver concerning its contents.
7. The Superintendent of Schools in the School District
is Dr. Carl S. Hoffman (TR-27). The Superintendent is responsible
for the overall administration of the School District, including
the final evaluation of teachers employed in the School District
(TR-28, 34-35) .
8. As to each ability level in the High School English
Department, a Curriculum Guide ("Guide") was developed in June,
1976 which establishes objectives and minimum course requirements
(S-1; TR-28-31, 268-269).
9. The Guide was developed by a ornmittee of English
faculty members under the overall supervisioi. Schneller,
together with contributions from the entire faculty of the English
Department (TR-41-42, 56, 270-271, 521, 653). The Guide was
adopted as the policy of the School District by the Superintendent
and has not ?',een subsequently amended in any respect (TR-30-31,
56, 1045).
338
10. The Guide provides for "a sequential, ordered
English program" (5-1; TR-295-297, 298, 1375). The importance
of this sequential development has been discussed at various
departmental meetings (TR-297-298, 963-964).
11. The Guide establishes the minimum requirements
that must be met so that continuity appears from Junior to
-Senior year, so that planning can take place,, and so that teaching ,
methodS and techniques can be shared (S-1; TR-57, 1209, 1526).
12. The number of required reaT.ngs in each genre,
by ability level, as specified by author in the Guide are as
follows:
LEVEL 1:
LEVEL 2:
LEVEL 3:
Novels - 5Drama - 4Poetry - 7Short Story,- 1Non-fiction - 3
Novels - 3Drama - 2Short Stories - 7Poetry - 11
Novels - 2Drama - 2Short Stories - 3Non-fiction - 2Poetry - 4
(S-1 at 25-26, 30, 35-36).
13. The required readings at each ability level were to
be covered without substitution or elimination unless otherwise
approved by the department chairman (TR-48, 1043-1044).
14. The Guide requires that students at Levels 1 and
2 be assigned a minimum of eight writing experiences and one
33934j
research paper and students at Level 3 be assigned a minimum
Df eight writing experiences and one extended paper (S-1 at 3;
rR-357, 1073-1074).
15. Departmental policy distinguishes between paragraphs
and compositions and contemplates that the required and supplementary
writing experiences be multi-paragraph compositions, rather than
single paragraphs or lines of verse (S-I at 3, 9, 26; TR-290, 1075,
L077, 1078-1080, 1484-1485).
16. Responses to questions cn either the mid-year
)r final examination are not writing experirmces as defined by
:he Guide, principal s directives and departmental policy and,
:herefore, are not to be counted toward accomplishment of the
linimum or supplementary requirements (S-1; TR-290, 363-364, 370,
183-386, 148' -1488, 1527).
17. Th. faculty members of the English Department,
,ncluding Mr. Browne, were fully aware of the requirements of
he Guide and all policies and directives related thereto, and
'ere fully expected to meet those requirements (TR-653, 1043).
18. Mr. ErowrAcl .;led to assign any writing during the
977-1978 school year until October or November and then only
equired the writing of a single paragraph (TR-663-664). This
ssignment did not constitute a writing experience within the
eaning of the Guide (TR-290).
19. On several occasions durinc the fall of 1977, Mr.
chneller advised Mr, Browne that he had not assigned sufficient
.7'_isactory writing experiences to his students, especially
340 3 4
the Level 1 seniors (TR-658-659, 1490), which Mr. Browne later
admitted to Mr. Schmid. (BR-10; TR-1091-1092).
20. As Mr. Browne admittedly was aware, School District
policy requires that all faculty members prepare up-to-date lessont
plans and insert them in the plan book at least a week in advance
of the period covered by that lesson plan (TR-419, 1436, 1593).
21. For a six-week period, from November 2, 1977 through
at least December 13, 1977, Mr. Browne's lesson plans if prepared
at all, were not inserted in the plan book (BD-2; S-15; TR-416,
1434, 1593).
22. As Mr. Browne was well aware, School District
policy requires that all teachers present their lesson plan book
and grade book to an observer upon his ent 7 into the classroom
(TR-1184, 1185).
23. On December 13, 1977, Mr. Browne was observed by
Mr. Lucian during a Level 1 class. Mr. L,_cian later prepared an
Observation Report with respect thereto and forwarded a copy to
Mr. Browne (S-15; rR -415).
24. In violation of School District policy, Mr. Browne
failed to present his plan book or grade book to Mr. Lucian during
that observation (S-15; TR-415-416).
25. On the date of Mr. Lucian's observation, Mr. Browne
assigned the second writing assignment of the school year to that
class (S-15; TR-416) .
26. Mr. Browne's plans, which Mr. Lucian was able to
review following this class, were unsatisfactory it chat they were
34134
"sketchy or non-existent" and failed to distinguish between
ability levels (S-15; TR-416) .
27. Mr. Browne never requested a conference with Mr.
Lucian with respect to the report and never questioned any of
its recommendations or criticisms until the board hearing (S-15;
TR-422, 799, 1308).
28. On December 15, 1977, Mr. Browne's Level 1 class
was observed by Mr. Schneller, who later prepared an Observation
Report with respect thereto and forwarded a copy to Mr. Browne
(BD-3;.
29. Mr. Browne failed to present his grade book to
Mr. Schneller, as required, upon Mr. Schneller's entry into the
classroom (BD-3).
30: At the time of this observation, Mr. Browne had
not begun the required writing program as he had failed to assigri
any writing experiences to these Level 1 students (BD -3).
31. On January 19, 1978, Mr. Schmid observed one.of Mr.
Browne's Level 3 classes and thereafter prepared an Observation
Report, a copy of which was forwarded to Mr. Browne (BD-4).
32. At that time, despite prior recommendations, Mr.
Browne still had failed to adhere to the required curriculum at
any level and, specifically, Mr. Browne had failei to assign more
than two writing experiences to any of his classes (BD-4).
33. Mr. Schmid recommended that "[s]teps need to be
taken to remedy this situation at once, but in an orderly fashion
so that the students are not suddenly inundated in compositions"
(BD-4) .
34. On January 24, 1978, one of Mr. Browne's Level
3 classes was observed by Mr. McGinley, who thereafter prepared
an Observation Report and forwarded a copy to Mr. Browne (S-18;
TR-450-451).
35. Mr. Browne again failed, in violation of school
policy, to prese either his grade book or plan book to Mr.
McGinley upo his entry into the class as an observer, although
Mr. Brownew s conducting individual student conferences and
not relying pon either book (S-18; TR-451).
36. During the first quarter of the 1977-1978 school
year, Mr. Browne admittedly had assigned no writing experiences
but had only given a one paragraph writing assignment (S-2 & 2A;
BR-10; TR-1484, 1489).
37. In order to meet the minimal requirements of the
Guide by the end of the semester, Mr. Browne had been required
to assign an inordinate number of writing experiences to his
students during that period of time (S -2 & 2A; TR-1489-1490).
38. On or about February 23, 1978, following the issu-
ance of Mr. Schmid's draft Teacher Evaluation Report of Mr. Browne
on February 15, 1978 (BR-2; TR-667-668), Mr. Schneller had a
meeting with Mr. Browne in order to review its contents as well as
Mr. Browne's grade book and his studen ' composition folders
(S-2 & 2A; TR-1483-1490). Mr. Schneller a ed Mr. Browne that
his first semester performance had been unsatisfactory (S-2 & 2A;
TR-1490).
34334 j
39. During this entire period of time, Mr. Browne was
fully aware that Mr. Schmid, Mr, Schneller and his bother super-
visors were dissatisfied with his performance and specifically
with the amount of required writing experiences accomplished in
the first quarter (TR-1094).
40. On or about March 1, 1978, based on all of the
earlier Observation Reports of Mr. Browne, as well as Mr. Schneller's
conference with Mr. Browne and subsequent report to Mr. Schmid,
Mr. Schmid prepared and issued an evaluation of Mr. Browne's per-
formance during the first semester of the 1977-1978 academic year
and assessed Mr. Browne with a final evaluation of "unsatisfactory"
(S-2 & 2A; TR-72) which was reviewed by Dr. Hoffman and approved
by him (TR-35).
41. Mr. Browne's performance during the first semester
was rated as "unsatisfactory" because:
and
"For the period from September 27 throughDecember 15, Mr. Browne ignored the minimumwriting requirements established by thedepartment. Mr. Browne's work has beensatisfactory in routine matters pertainingto the classroom, but he has failed to keephis planbook up-to-date as required. Failureto teach the prescribed materials and a lackof day -to -day progress in the classroomleave much to be desired. While effortsto correct the writing deficiencies havebeen made by this date, it does not alterthe fact that virtually no student writingwas done for the first three months ofschool."
344
"Mr. Browne has not proved to be an effec-tive teacher of English thus far this yearin that he has not taught composition asrequired, causing student questions andconcerns on the part of parents and coun-selors. Mr. Browne has thus far registeredone unsatisfactory marking period and onemarking period of corrective action.Neither should have occurred."
(S-2 & 2A; TR-1431-1433) .
42. Following the assessment of this unsatisfactory
evaluation, Mr. Schmid prepared Plans to Improve with respect t':.,.
Mr. Browne's performance (S-8; TR-81-82). These Plans to Improve
included the following:
"2. Mr. Browne will make every fc 4 t,-J
keep an adequate and accurate 11.,an
book that is up-to-date.
"3. Mr. Browne w'll adhere toand teach the materials presc;-1: it
"4, Mr. Browne will continue to sa; ctarget regarding the student wrItinjquirements in all courses." (S-8)
43. Mr. Browne was next observPA by Mr. McGinley on
April 12,.1978 during a Level 3 class, following which Mr. McGinley
prepared an Observation Report and forwarded a copy to Mr. Browne
(S-19; TR-452, 1256).
44. Notwithstanding his recent unsatisfactory evaluation
and the outstanding Plans to Improve, Mr. Browne's lesson plans
continued to be too general to be of any value to a substitute or
supervisor and provided no guidelines as to what was to be accom-
plished or how (S-19; TR-454, 1256).
345 ,
45. On April 24, 1978, Mr. Browne's Level 2 class was
observed by Mr. Schneller, at which time Mr. Browne's writing
assignments, grade book and lesson plans continued to be unsatis-
factory. An Observation Report was thereafter prepared by Mr.
Schnelier and forwarded to Mr. Browne (S-25; TR-1437).
46. On May 5, 1978, Mr. Lucian observed Mr. Browne's
preformance in one of his Level 3 classes, and then prepared an
Observation Report and forwarded a copy to Mr. Browne (S-16;
TR-416-417).
47. During almost the entire period of this observation,
Mr. Browne only performed certain administrative work, permitting
student conversation and whisthng and general disorder, thus
wasting a substantial amount of instruional time (S-16; TR-417).
48. Although N Li .tri made clear that a conference
was availab1 with respect to 4.°',r- Observation Report, Mr. Browne
did not then take advantage of crt. offer or, in any 46y, take
issue with that report (S-16; TR-).
49, Based on Mr. -11rr performce during the entire
1977-1978 academic y-ar an:' observ!+ions of hip= eer-
formance, on June 13, 197e, W. 7scaf5ed a "minimal' .-acing
as Mr. Browne's final evaluaticn, t: ivq,tion was reviewed and
approved by Dr. Hoffma.; (S-3; TR-31-:8. -7 i3).
50. During the 19787:Y19 school year, Mr. Browne was
assigned to teach one Level 1, seLior English class, two Level 2
senior English classes and two Level 3 senior English easses
(TR-604).
346
51. Mr. Browne applied for and was granted a sabbatical
leave for the second semester of tho 1978-1979 school year and,
accordingly, would have to be replaced by a substitute teacher
during that semester (TR-173-174, 260, 603-604).
52. On September 19, 1978, Mr. Browne's Level.1
was observed by Dr. Zimmerman, who later prepared an.Observat_
Report and forwarded a copy to Mr. Browne (S-20; TR-522-523)-
53. The pace of instruction, as well as M:. Browne's time-
consuming review of a vocabulary, unit, was not considered satisfactory.
(S-20; TR-523-525, 1540-1541).
54. On several occasions during the first semester of
the 1978-1979 school year, Mr. Browne refused to provide his plan
book and grade book to Mr. Schneller as requested (TR-336-339, 398).
55. Notwithstanding prior criticisms in Observation
Reports and in the Teacher Fvaluations, Mr. Browne continued to
prepare unclear and inadequate lesson plans in that they -contained
abbreviations which were not readily identifiable to substitutes
and notations indicating class discussions without further indicating
the purpose to be accomplished or the method thereof (TR-1206, 1233).
56. On November 5, 1978, Mr. Schneller observed one of
Mr. Browne's English Level 2 classes (S-12; TR-283). .
57. Following his observation of Mr. Browne 'on November 6,
1979, Mr. Schneller held a series of conferences with Mr. Browne,
.concerning the Observation Report prepared by Mr. Schneller (TR-308-
309, 312, 1494).
347 3
58. As of the date of Mr. Schneller's observation and
subsequent report, an insufficient number of grades had been entered
py Mr. Browne in his grade book to measure the students' progress
luring the first semester adequately, and the writing experiences
assigned by Mr. Browne to this Level 2 class continued U.-.; be
leficient (S-12; TR-324, 327, 329-330).
59. On December 19, 1978, Mr. Schneller examined student
composition folders at each lets taught by Mr. Browne and prepared
an Observation Report based the.:-eon (S-13; TR-285-286,350-352).
60. At all levels, an unsatis-actory number of writing
experiences had been assigned by Mr. Browne notwithst_ ling the 1
?receding year's evaluations and Plans to Improve. In Mr. Browne's
lievel 1 and Level 3 classes, no writing experiences had been assigned
since October 17, 1978 and October 25, 1978, respectively, and, in
lis Level 2 Intsses, no writing experiences had been assigned between
)ctober 26, 1978 and December 11, 1978 (S-13; TR-285-286).
61. Although the Observation Report made clear that a
;onference was available, if desired, Mr. Browne did not request a
;onference with Mr. Schneller nor in any way then contest the
Eindings or conclusions contained in that Observation Report
(S-13; TR-286, 288).
62. Mr. Schneller held a meeting on or abOut r:4-6-embr 19,
L978 with Mr. Browne concerning fulfillment of the Guide requir?ments.
ks of that date, notwithstanding his' prior ratings, Mr. Browne!s
reading assignments at all levels and in all categories were ,iinsatis-
:actory since he again had failed to adhere to the required reading
348
3 5
program outlined in the Guide by failing to cover a sufficient
number of works in the five categories at any level (S-6; TR-273-274).
63. Mr. Schneller advised Mt. Browne that the required
readings h n:-,L been covered by Mr. Browne in a sufficient' number
during the first semester. TR-274, 1497-1498).
64. On January 4, 1979, Mr. Browne's Level 1 class; was
observed by Mr. Lucian, who thereafter prepared an Observation
Report and forwarded a copy to Mr. Browne (S-17; TR-419).
65. Once again, notwithstanding all prior recommenda7
tions, evaluations and Plans to Improve, Mr. Browne failed to pre-
sent his plan book to Mr. Lucian during the observatior because
Mr. Browne allegedly had left the plan book at home (S-17; TR-419,
437).
66. As set forth in the faculty handbook, mry teacher
is required to keep his lesson plans up to date, complete and in
his classroom at all times (TR-419-420).
67. Approximately one week after Mr. Lucian's observation,
Mr. Browne finally produced his plan book and grade book for Mr.
Lucian's review. At that time, although the Plan for Improvement
required both up-to-date and complete lesson plans (S-8, 10; TR-421),
Mr. Browne's lesson plans continued to be sketchy, incomplete and
unsatisfactory, and no grades had been entered in the grade book
for about six weeks (TR-7419, 420, 1537).
68. On January 12, 1979, Mr. Schmid observed one of Mr.
Browne's Level 3 English classes, and later prepared an Observation
Report and forwarded a copy to Mr. Browne (S-5; TR-59).
349
69. As of the date of Mr. Schmie-S) observation, a num-
ber of grades had not been entered by Mr. Browne in his grade book
and, moreover, Mr. Browne still had not entered the final grades
for the first marking period (S-5; 7R-64).
70. On January 17, 1979, Mr. Schmid observed one of Mr.
Browne's Level 2 English classes and thereafter prepared an Obser-
vation Report, a copy of which was forwarded to Mr. Browne (S-7;
TR-68).
71. As of that rata, Mr. Browne had nr entered any
grades in grad' sinr:,e sometime before the Christmas vacation
and had failed to mdrk and return his students' tests promptly (S-7;
TR-69, 10071008).
72. Moreover, during a period of at least two calendar
months, no writing work, much less writing experiences, had been
assigned by Mr. Browne (TR-114:1, 1161).
73. As of the date of the;observation, Mr. Browne still
had not adhered to or improved the reading requirements set forth
in the Guide (S-7).
74. Although M. Browne was advised by Mr. Schmid that
the study of a Shakespearian play only by showic! a filmstrip or
moyiestrip for approxiwately one and a half periods did not satisfy
the curriculum reading requirement, Mr. Browne refused to reconsider
or to modify his approach and require the actual reading of the
play (57; TR-70, 1058-1060, 1064-1065).
75. Because of Mr. Browne's in.pen6:1.ng sabbatical leave,
on or about January 17, 1979, Mr. Schnellf held another conference
with Mr. Browne to discuss the reading and 'writing requirements
accomplished by Mr. Browne at -that- time, his proposed curriculum
ion anu what requirements would have to be accomplished in
the second semester by the substitute teacher (S-11, 27; TR-1499-
1500).
76. As of January 18, 1979, Mr. Brdwne had failed to
comply with the reading requirements set forth in the Guide as follows:-
Level 1:Completed by
Required Mr. Browne
Novels-5Drama-4Poetry-7Short Story-1:rin-Fiction-3
Level 2:
Required
Novels-3Drama-2Short Stories-7Poetry-11
Level 3:
Required
Novels-2
Dram--2Shor .stories -3Non-Fiction-2Poetry -4
1
1
2
1
0
Completed byMr. Browne
1
filmstrip only0
2
Completed byMr. Browne
none of the rs7quired readingsfilmstrip only
0
0
1
(S-11, 27; Tr,.-27.7.-279, 1500-1504).
S,x%larly, as of January
expr1.2ices accomplisheu
Left for Second SemesterSubstitute to SatisfyMinimum Requirements
4 major novels3 major playsmajor poets,
0
3
Left fcr Second SemesterSubstitute to SatisfyMiniitfn Requirements
2 Major novels2 major plays
all 79
Left for Second Semester.Substitute to SatisfyMiAimum_llquirements
2
2
all 3all 2
3
18, 1979, the writing
Mr. Browne's classes were
3513 5 /
deficient
and Mr. Browne failed to meet the writing requirements set
/.. forth in the Guile because;
(a) Mr. Browne h.-1 only twowriting experiences . _c:el 1 students;
(b) Mr. Browne ass .4. no writing exprences to his Level ..ilents for oycrthree-month period, October 17, 1978 to'Thecember 19, 195;
(c) Mr. Browne had assigned on:y 2 writiexperiences to his Level 2 and Level 3students;
(d) Mr. Browne had impioperly attemptedto incl.,-.de short, cingle paragraphs,verse :forms and responses to questionson the mid-year examinations as writingexperiences; and
(e) Mr. Browne misrepresented the natureof the writing assignments accomplishedduring the first semester to Mr. Schneller.
(S-11; 14, 27; TR-288-295, 365, 380, 388, 1486, 1544-1545).
78. Mr. Browne's performanr:e during the first semester
of the 1978-1979 academic year, in terms of both the minimum re-
quired readings and writing experiences, was unsatisfacto ylrnd
in violation of the sequentially ordered Guide, leaving, as a
result of his scheduled sabbatical leave, an undue burden fo: his
replacement teacher as well as his students during the second
semester in terms of the quantity of material to be covered and the
quality of coverage p.issible (S-11; TR-295, 539, 1504).
On or about January 25, 1979, based on all of the
Observation Reports c Mr-Browne, as we'.1. as Mr. Scnreller's ?eview
of Mr. Browne's propose' curriculum division and report thereon,
Mr. Schmid prepared and issued an evaluation of Mr. Browne's
352' 3,5- 3'
performance :luing the first semester of the 1978-1979 academic
year and assessed a final evaluation of "u: _sfactory" (S-4; TR-
59, 74-79), which was reviewed and approved by Dr. Hoffman (S-4;
TR-38).
80. Following the issuance of the January 25, 1979
unsatisfactory rating, and a complete review of Mr. Brcvne's per-
formance during the 1977-1978 and 1978-1979 school years, the pre-
sent charges were filed with the Board by the Superintendent on
February 13, 1979 (BD-1; TR-39-40).
DISCUSSION
Appellant raises a number of substantive and procedural
issues whicl he claims should invalidate his dismissal by the
Abingto_ School Board. Included are that the 'repellant did not
receive two consecutive unsatisfactory ratings as required by
the regulations of the Pennsylvania Department of Education for
dismissal on grounds of incompe'ency, failure to evaluate the
appellant for pupil reactio: AS required by e-e. Public School Code
of 1979, Act of :March 10, 1949, P.L. 30, as amended, 24 P.S. §11-
1123, and failure to issue the DEBE 33 rating form prescribed by
the Department of Education and required by the rules of the District.
All of these objections, of course, go to the issue of cAsmiSsal on
grounds of incompetency.
Appeli7Jit further contends that he was denied a fair
hearing because the school administrators introduced materials at
the hearing which had been wrongfully retained by thctm, l'hat they
353 353
had supprf evidence favorable to him, and denied him access
to hits file. He also objects to the absence of evidence
that all of the members of the board considered all of the evi-
nce presented.
Lastly ApE,1.7. .xlinterds that the substantial credible
evidence does not susta the charges and that the evidence put
forth goes, only to the issue of competency. With this contention
we cannot- agree.
Disposing first of Appellant's procedural complaints,
we cannot find any unfairness or lack of procedural due process
in the hearings held by the Board,
Appellant objects to the retention and introduction
into evide ce of two memoranda dLafted by his department chairman
ccmmenting upon and evaluating his performance as a teacher. These
memoranda were not placed in Mr. Browne's "official" file but were
apparently kept in an "non-official" file by Mr. Schneller, the
department chairman. This war in accordance with the provisions
of the collective bargaining agreement of the district, and there
is no evidence of record that the Appellant ever availed himself
of his rights under the agreement tc nspect his "non-official"
file or was in any way denied his right to do so. Both the "official"
and "non-official" files of the district were kept in accordance with
the provisions of the collective bargaining agreement between the
Abington School District anc the Abington Education Assokion,
354
Article III, Section E and F and Appellant had a right of inspec-
tion as to both. There is no bass to hold that relevant evidence
at a dismissal hearing should be limited to Appellant's "official
file".
We find nc, merit to Appellant's claim that the school
ad 7,i strators supprgad observation reports which were favorable
to The reports in .;:stion, Board Exhibits 2, 3 and 4 were
admittly transmitted to Browne at the time of their prepara-
tion, they t,;)secteil Appellant in the spring of 1978, and
were produced at a grievance hearing to which Appellant was party
in August, 1978. Appellant had every opportunity to obtain the
reports and introduce them into evidence at his dismissal hearings.
Indeed, the reports ultimately were admitted into evidence and pre-
sumably considered y the Board in reaching their final determination.
Appellant also contends that the "findings" of the Board
are defective because there is rn Oidence tr.: show that-the members
of the Board considered all of the evidence rresented. App -.1ant
concedes that it is :.)t. required that each Ec.%.ard member hear all
of the testimony. Acitelli v. Westmont Hillt..cp " "hool Disi;rict, 15
Pa. Cmwlth, 214, 325 A.2d 290 (1974). What is required iE that the
members who decide the matter consider all th evidence, Foley
Brothers v. Commonwealth, 400 Pa. 548, 163 A.2d 80 (1960); that they
all give a "full impartial and unbiased cc,nsideration to the record
produced before the Soard". Board of Public Education of the School
J_ct of Pittsburgh v. Pyle, 37 Pa. Cmwlth. 386, 390 A.2d 904
(.179). Appellant seems to contend that the Board must affirmatively
355 3 G
s how that the members have given the record the necessary con-
sideration. We do not so understpnd the requirements of the above
cases. The Board has represeited in its adjudication that all
board members engaged in a review of the record and in the absence
of evidence to the contrary there is no reason to doubt it.
Considering the undue number of public hearings, fourteen lengthy
hearings over a pet od of five months amassing over 1,500 pages of
testimony, the actual personal attendance of Board members in this
case was admi:able and there is no reason to ?resume that their
review of the record would have been less conscientious.
II
As noted above, the Appellant contends that the evidence
put forth by the School District goes only to the issue of compe-
tency. We find no merit in this contention. The Superintendent also
charged and the Adjudication of the Board found that Appellant was
guilty of conduct constituting persistent negligence and persis,.ent
and willful violation of the school laws within the meaning of
Section 1122 of the Public School Code of 1949, supra. These are
two distinct and separate grounds for dismissal under the Code and
the evidence clearly sustains App11ant's dismissal on either or
both.
A review of the Findings of Fact and of the evidence
clearly indicates that Mr. Browne continuously during the 1977-1978
school year and during the first half of the 1978-1979 school year
failed to assign to his classes either the prescribed number of
3515
reading experiences or the prescribed autho' , that he failed
to assign the required number of wriLing experiences, that he
failed to keep his lesson plans in a form satisfactory to his
supervisors and that he failed to keep his grade books current.
His conduct in this regard can only be regarded as persistent
negligence. See Lucciola v.' Commonwealth, 25 Pa. Cmw1th.419,
360 A.2d 312 (1976); Clairton School District v. Strinich, 50
Pa. Cmwlth. 3139, 413 A.2d 26 (1980). It is equally clear that
his conduct constituted willful and persistent violation of
school laws. Violation or disobedience of school board rules and
regulations and orders of supervisory personnel of a school district
can be defined as persistent and willful violation of the school
law. Abridge School District v. Snyder, 346 Pa. 103, 29 A.2d
34. (1942). It includes violation of rules and orders of the
employee's superior. Harris v. Secretary of Education, 27) Pa.
Cmalth. 625, 372 A.2d 953 (1977). It is inconceivable on the
record of this case that Appellant did not intentionally fail to
adhere to the Sc:ool District policy established in the Curriculum
Guide throughout the 1977-1978 school year. One Observation Report
after another pointed out these failures to Mr. Browne. In spite
of the Observation Reports and of various plans for improvement,
Mr. Browne's performance for the first semester of the 1978-1979
school year as set forth in Finding of Fact No. 76 was even less
satisfactory from that of the previous year. It can only be con-
cluded from the record that Mr. Browne had no intention of following
the clear and unequivocal requests of his supervisors that he
357 3(33
comply with the Curriculum Guide and the school policy with regard
to lesson plans and grade books.
Consequently we conclude that sufficient cause has be,,,!n
demonstrated to discharge Mr. Browne as a 1,:-ofessional employee
for persistent negligence and persistent and willful violation of
school laws.
III
Because of the position we have taken with regard to
the charges of persistent negligence and persistent and willful
violation of school laws, we consider it unnecessary to discuss
Appellant's objections based upon the question of his discharge
for incompetency.
ORDER
AND NOW, this 8th day of January , 1982, it is
hereby ordered and decreed that the appeal of Frederick W.
Browne be dismissed and the decision of the Board of School
Directors of Abir-rton School District is affirmed.
Robert G. ScanlonSecretary of Education
359 3 6;
IN THE OFFICE OF THE SECRETARY OF EDUCATICNCOMMONWEALTH OF PENNSYLVANIA
GARY L. ANDREWSAppellant
v. Teacher Tenure Appeal No. 25-79
LEBANON AREA SCHOOL DISTRICT,Appellee
OPINION
Gary L. Andrews, Appellant herein, has appealed from the action of
the Lebanon Area School District removing him from his position as
A !.stant Elementary Trincipal of Northwest Elementary School and Principal
of Southwest Elementary School and assigning him to the position of
sixth-grade elementaly teacher at the Northwest Elementary School, which
action, taken without his consent, he contends is an improper demotion
in position and salary.
FINDINGS OF FACT
1. Gary L: AndieWs; Appellant herein,' "is :professional employee
of the Lebanon Area School District. Transcript of Hearing Before
School Board, T.B. 27, School District Exhibit 6, Appellant's Petition
of Appeal Exhibit "A."
2. Appellant began his employment as anAelementary classroom
teacher in the Lebanon School District in 1971. 'He attained profes-
sional employee status in 1973 and served in the capacity of elemc. _sky
classro teacher until school year 1975-76, T.B. 27, School District
3f;6360
iibit 6, Appellant's Petition of Appeal Exhibit "A."
3. By resolution #4611 dated March 17, 1975, the School Board
appointed the Appellaht to serve as Fubetitute principal at Henry Houck
and Garfield Elementary Schools for the 1975-76 school year because
Fredric Richter, who served as Principal of those schools, would be away
on sabbatical leave. With this appointment, the School Board gave the
Appellant an increase i salary. School District Exhibit 1, T.B. 6, 13,
14, Appellant's Petition of appeal Exhibit "B."
4. By letter dated March 18, 1975, Paul C. Dunkelberger, District
Superintendent, notified Appellant of the action taken by School Board
at its meeting of March 17, 1975, appointing him as acting\principal
during the period of time that Mr. Richter would be away-on sab'atical
leave and that his uew duties would begin as of September, 1975, and
continue throue the 1975-76 school year. School District Exhibit 2,
Appellant's Petition of Appeal Exhibit "C.''
5. Appellant was compensated at the base salary for an assistant
ten (10) month elementary principal as established in the SO-1pol Dis-t'
trict's Administration Compensation Policy. Appellant's Petition of
Appeal Exhibit "B."
6. Appellant understood that his assignment during the 1975-76
school year was temporary in nature since he was substituting for
Fredric Richter, who we ,d be away on sabbatical leave. T.B. 28, 32.
7. A new elementary school named Northwest Elementary School was
) opened at the beginning of the 1976-77 school year. This created two
administrative positions that had to be filled: principal and assistant
principal. ,T.B. 14.
8. By Resolution #4827, dated March 15, 1976, the School Board-
appointed AppelJaniL as assistah; Elementary principal for the Northwest
161 36, ;i6 7
Elementary School beginning in September 1976. Appellant received a
salary of $18,000.00 for a ten-month period. School District Exhibit 1.
Appellant's Petition of Appeal Exhibit "pr."
9. By letter dated March 16, 1976, Paul C. Dunkelberger, District
Superintendent, confirmed the School Board's action of March 15, 1976,
and notified the Appellant that the School Board appointed him as assistant
principal for the Northwest EleEentary School effective September 1976,
at a salary of 3,000.00 for the 1976-77 school year. School District
Exhibit 3. Appellant's Petition of Appeal Exhibit "D."
By Resolution #5131, dated May 16, 1977, the School Board
as.9 .6:te-.1 the Appellant to the position of Principal of the Southwest
Elementary Building and AsSistant Principal of the Northwest Elementary
41Building because Clark D. itclu7ock would be away on sabbatical leave.1
School District Exhib44. Appellant's Petition of Appeal Exhibit "B."
11. Pursuant to Resolution #5131, Paul C. Dunkelberger, District
Superintendent, notified Appellant by letter of his appointment.
School District Exhibit 4. (Also referred to as Appellant's Exhibit "E"
wftich was not attached to his Petition of Appeal.)
12. By Resolution 415428, dated July 17, 1978, the School Board
transferred the Appellant from the position of Principal of the South-
west Elementary Building and Assistant Principal of the Northwest
Elementary Building to the position of elementary classroom teacher
effective at the beginning of the 1978-79 school year. School District
Exhibit 1. Appellant's Petition of Appeal Exhibit "B."
13. By letter dated July 20, 1978, Paul C. Dunkelberger, District
Superintendent, notified the Appellant of the School Board's action
assigning him to a teaching position. The Superintendent further noted
that the transfer would be effect4.ve as of September 1978( and that the
salary for the new teaching assignment would be $14,025.00. School
District Exhibit 5. Appellant's Petition of Appeal Exhibit "B." T.B.
19-20.
14. At the hearing held before the School Board regarding the_
:Tenant's alleged demotion, the Appell.--At testified that he had several
discussions with the District Superintendent regarding Mr. Hitchcock's
return and that he admitted being aware that Hitchcock's return from
sabbatical leave could mean the Appellant mid, =lave to return to the
classroom. T.B. 9, 10, 21, 22, 36-27.
15. Appellant's salary for the 1977-78 school year was $19,991.00
T.B. 21.
16. Appellant's salary for the 1978-79 school year was $1°4,025.00.
School District Exhibit 5. T.B. 19-20.
17. The School Board's action dated July 17, 1978, wherein it
reassigned the Appellant from the position of elementary principal to
elementary teacher resulted in a change in Appellant's position from
principal to teacher 2nd a decrease in salary.
18. On Janu '9. t Appellant, by his attorney, Robert J.
Eby, Esquire, re before the School Board regarding
Appellant's allegL_
19. During the 1978-79 school year, Appellant served as a sixth-
grade elementary teacher at tht 1$,ILhwest Elementary School. T.B. 30.
20. The. Apptailaqz wa: never issued any other employee contract
other than the professional employee contract issued to him on May 21, 1973
363 363
O
Appellant's Petition of Appeal Exhibit "A." T,B. 28
21. Between the years 1975 and 1978, Appellant never received a
contract from the School Boar' pecifically appointing him to the posi-
tion of assistant principal or principal. T.B. 28.
22. From school year 1975-76 to 1978-79, the enrollment in the
elementary schools of the Lebanon School District was as follows:
1975-1976 2,768
1976-1977 2,7021577-1978 2,5571978-1979 2,452
T.B. '6, 27.
23. The School District presented evidence at the hearing in-
dicating that there was a decline in student enrollment, teaching po-
sitions were eliminated, fewer elementary buildings were used and fewer
elementary prinlipals were needed to administer the schools. T.B. 5, 8,
10, 11, 16, 23,124, 25, 27.*
24. The School District established that due to a decline in
student enrollment, it n only four elementary principals, instead
of five, to administer tt. tools.
25. On August 20, 1979, a hearing was held before 'L Board
regarding Appellant's alleged demotion.
26. On November 2C, 1979, the School Board issued its/adjudicatien
with regard to the hearing held on August 20, 1979, and found that:
a. The Appellant had not been demoted.
b. The Appellant was hired in a temporary capacity.
c. The School District's action conformed to the require-
ments of the School Code.
27. On December 21, 1979, Appellant's Petition forsArneal was
filed '1 the Office of the Secret;'''' of Education.
3 ,/
364
28. A hearing was held before the Secretary of Education on
February 14, 1980. No tescimon was presented.
DISCUSSICN
Tha Ap a. :Lontends that the acts n taken by the School Board on
July 17, 1978, transferring him from the position of elementary principal
to,;the position of elementary ~_masher con: tituted a demotion in salary
and position. The Appellant also challenges the procedure followed by
the School District effecting his demotion as being contrary to the
provisions of the Public School Code of 1949, as amended, because he
claimajle never received notice of the School Board's decision of July
17, 1978, by registered mail he never receivers a written statement of-
the charges and/or reas'ns for hi& demotion; and, he never received
notice from the School 'Board advising -him of his right to a hearing
regarding his alleged demotion. Finally, the Appellant contends that
thn demotion was arbitrary and capricious. Accordingly, the Appellant
believes he "s entitled to be reinstated to tt« duties he held immediately
prior to hit. demotion.
The School District contends, that no demotion occurred because the
Appellant had never been permanently assigned to the position of Principal.
Rather, the School District maintains that the Appellant was acting in a
substitute capacity from the time he received his first assignment as
principal in 1975 to time it transferred him back to the position of
classroom teacher in the summer of l97S. Since his assignments were
temporary in nature, the School District contends that no demotion
occurred. Furthermore, the School Board believes that the procedures
3 'I365
it followed with regard to the Appellant's demotion were in accordance
with the pr, visio,s of the School Code.
There are two main issues to be decided: whether a demor,-,n
c,:_urred; and, whether the action taken by th,, .3chool noard w,_ In
accordance with the School Code.
With regard to the first issue, we conclude that . tion taken
by the Schoo/ Board on July 17, 1978, transferring the Appellant from
his duties as Principal of the Southwest Elementary School and := c.-73s.lstant
Principal of Northwest Elementary School to the position of elementary
classroom teache ':onstituted a demotion in position and salary.
The removp the Appellant from an administrative position and
his subsequent appoil_mrint to the position "f elementary teacher zonstituted
a demotion in that the act.42 moved the Apl ant to a lower position.
It also caused a :similar reduction in title, status, salary and prestige.
"A demotion cf a professional emplOyee is a ramoval from one position
and appointment to a lol,er position; ..." Smith v. oarby, 13C A.2d 661,
664 (1957). See also, lakeland Joint School Di -.riot v. Gilvary,
3 Pa. Commonwealth Ct. 415, 283 A.2d. 500 (1971). We hold a demotion
nas occurred because the record below clearly establishes the Appellant
suffered a substantial reduction in salary as well as a corresponding
reduction in duties and assignments.
The second issue to be decided is whether action taken by the BoaH.
to demote the Appellant was in accordance with the provisions of the
School Code.
When a professional employee claims he has been demoted without
consent, that employee has the right to request a hearing regarding the
alleged demotion and the School Board has a duty to grant a hearing
under Section 1151 of the School Code, 24 P.S. §11-1151. At the hearing
there are two primary areas of concern. first, the School BoaA must
decide the issue of whether not the employee suffered a demotion in
type of position or salary. Second, the School Board must provide
reasons for the demotion that are clear and apparent. Smith v. Darby,
288 Pa. 301, 130 A.2d 661 (1957); Taasone v. School District Redstone
TownshiE, 408 Pa. 290, 183 A.2d 536 (1962).
question of Whether the School Board offered
for
Our concern is with the
clear and
demoting the Appellant, since the issue of whether
apparer.. reasons
the Appellant was
demoted has already been resolved,
The facts developed at the heJr1; below indicate the b,;,Lrd offered
sufficient justification for its decision to transfer the Appellant from
his administrative responsibilities as Principal of Southwest EILmentary
School and Assistant F,-incipal at Northwest Elementary School to the
position of si : :th- grade elementary teacher.
The District presented testimony of the chool ict Superin-
tendent and the Assistant to the Superintendent in charge of personnel
to show that the District was suffering a decline in student enroll-
ments, thereby necessitating a reduction in teaching staff. In addition.
certain elementary buildings were closed and students were moved into
other buildings. Finally, decline in enrollment caused a corres-
ponding reduction in administrative staff, namely principals. T.B. 5,
10, 14, 16, 23, 26.
The Superintendent testified that the new Northwest Elementary
School initially needed two full-timc persons but that after it got off
to a good start it was unnecessary to retain two people. T.B. 8-, 9, 11.
3673
AdditIonal testimony was offered that indicated that be ~peen the
school years 197f and 9, there had been adminstrative r ,itions at
various elementary schools eliminated or created depend )n the needs
of the District. For example, during school year 1976- lie principal
positions at Harrison Elementary School anc1 r3arfield ElementaIy were
eliminated. T.B. 14.
;tiring the school year 1975-1976, Appellant replaced Fredric
Richter, Principal, while he was away on sabbatical leav During the
school year 1976-191:, Appellant was appointed in an administrative
at the new Nohwest Elemenrary School because of the need for
additional administrative staff. Durir3 school year 1977-1978, the
Appellant assumed Clark Hitch-:ock's responsibilitie3 as prir.cipal while
he was away or. leave. 141- n Mr. Hitchcock returned from
sahbatical leave, the Appellant was tr sferred back to the cla-aroom.
Ti, District did not reed nor coul' justif aaving five elementary
principals. The merersurplusage of elementary principals was reason
enough to justify the dem-tion. The record also establishes that the
Appellant and : -7tood that upon Mr. Hitchcock': return, he might have to
return to the classroom.
In challenging C- validity of his demotion, the Appellant has the
heavy burden of showinE that the action taken by the Board was not
founded upon proper considerations. The Supreme Court of Pennsylvania
has established that the actiongof schoo,_ boards are presumptively
valid.
Executive officers of municipal and schooldistricts have uany discretionary powers inperforming their functions; ordinarily courtswill not interfere with this exercise, but ifappears their action is based.on a misconceptionof law, ignorance through lack-of inquiry intofacts necessary to form intelligent judgment, orthe result of arbitrary will or caprice, courts
intervene to prevent an abuse of power adverse
368
to public welfare. Executive officers areclothed with the responsibility of originatingand executing plans for the public good; thepresumption is that their acts are on suchconsideration; and their decisions reached ina legal way after investigation..-- -When theiractions are challenged, the burcien of showingto the contrary rests on those asserting it,and it is ? heavy burden; courts can and willinterfere only when it is made appa-discretion has been abused. Abuse of discrer, :ndoes not, as a rule, come from unwise actsmistaken judgment, but generally spriags fromimproper influences, a disregard of duty, ora violation of law.Hibbz5 et al., v. Arensburg et al., 276 Pa. 24,25, 119 A.727, 728 (1',23).
It is well settled law in Pennsylvania that the School Code does
n' p-ohibit a school board from demot ng employee or
reassigning a professional employee to anothc._ ,sition in accordance
with its judgment and discretion. with v. Darby, 388 Pa. 301, 130 A.2d
:,61 (1957). Schoo: b:ards clearly have the r(t.,er to assign their personnel
to ocher positionQ and a professional employee has no v-sted right to
any particular positic,n. Smith, Id; Appeal of Santee, 307 Pa. 601, 156
A.2d 30 '1959); Wesenberg Case, 346 Pa. 438, 31 A.2d 151 (1943); Commonwealth
ex. rel. Wesenberg v. Bethlehem School District, i48 Pa. Super 250, 4
A.2d 673 (1942). Also, the courts have consistently upheld the right of
a school board to abolish a position or office and transfer and/cr
assign an employee to a new position. Smith v. Darby, 388 Pa. 301, 130
It.2d 661 (1957); Lakeland Joint School District v. Gilvary, 3 Pa. Common-
wealth Ct. 41.), - 500 0.9/1); Bilotra v. P_cet7,r,- 'f Education,
8 Pa. Commonwealth Ct. 631, 304 A.2d 190 (1973); Lucostic v. Brownsville
Area School District. 6 Pa. Commonwealth Ct. 587, 297 A.2d 516 (1972);
Tassone v. School District of Redstone Township, 408 Pa. 290, 133 A.2d
536 (1962).
369 3 7
Therefore, the school board, in the instant ca: - -:early had the
authorit, to transfer the Appellant from his position as Elementary
Principal to the position of c issroom teacher,
Also, as part of it- responsibility to efficiently administer the
public school system within its district, a school board is free to
reorganize and realign its stafi. Smith v. Darby. 388 Pa. 301, A.2d 661
(1957); 1.;\celand Joint School Do.strict v. Gilvary, 3 Pa. Commonwealth
Ct. 415, 283 A.2d 500 (1971), Lucostic v. Brownsville School District, 6
Pa. Commonwealth Ct. 587, 297 A.2d 516 (1972). The record indicates
that dm to the declining enrollments, the Board consolidz-ed some of
the elementary schools under une principal thereby reducing the number
of FloJeni. .ncloals it needed in the District. To have retain
the .-laat as Elementary Principal clearly would have been costly and
unneceusary.
The Appellant contends there was insufficient evidence presented at
the hearing to justify the School. Board's action. We disagree. We find
that the reasons presented by the School .aoard n2 set forth in the
records below were sufficient to meet its initial burden. Therefore,
b
the Appellant had the burden of proving the-Appellee acted in an arbitrary
or capricious manner or abused its discretion with regard to the demoti(1.
Smith v. Darby, apra,; Lak*land Joint School District v. Cilvary, 3 Pa.
Commonwealth Ct. 415, 283 A.2d 500 (1971) ostic Brownsville School
District, 6 Pa. Commonwealth Ct. 587, 297 516 ('97::). The Appellant
has not met this burden in a manner sufficient to justify invalidating
the Board's action. He has not offered any evidence to indicate that
the action of Beard was arbitrary, capricious, discriminatory or
founded upon improper considerations. Therefore, the acti,a of the
Board must be sustained.
370
Appellant's argument that the demotion was improper because it was
not based on any deficiency or failing on his part lacks merit because
thl,s argument rags to tecogniz that a school board may demote an
employee regardless of his capabilities or job performance. Numerods
demotions 1h-we been upheld by the courts which were not disciplinary in
nature. See, fur example, Smith v. Darby, 130 A.2(1 661 (1957); Tassone
v. School D-isLtict of Redstone Township, 408 Pa. 290, 183 A.2d 536
(1962); 1.,;costic v. Brownsville School. District, 6 Pa Commonwealth Ct.
587, 297 A.2d 516 (1972); Bilotta v. Secret -rte n Education, Pa. Commonwealth
Ct. 631, 304 A. 190 (1973). !'he dem( insLant case was rot
premised on Appellant's job perforwtce .ed not have been.
Finally, we must address the App, ant's argument that his cemotion
was procedurally defeCtive, thereby rendfring it invalid.
1::e Appellant argues that the demction was procedurally defective
fcr the following reasons: he did not receive written notice by reg-
istered mail of the Board's decision to transfer him on July 17, 1978;
he never received a written statement of the charges id/or reasons for
his demotion; and, he never received notice from to school Board
advising him of his right to a hearing regarding 3 alleged demotion.
The record clearly establishes that the Appellant had actual writ-
ten notice of the Board's decision of July 17, 1978, transferring him
from principal to classroom teacher. The fact that the notice was not
sent registered mail does not invalidate the demotion. First, there is
no clear authority either the Section 1151 of the School Code or in
the cases interpreting that section that notice of the Board's decision
to demote must be sent registered mail. Even were we to accept Appellant's
371 3 7
argument, the Commonwealth .,curt has announced that notice which is sent
by regular mail and is actually received sa _sfies the statutory requir,-ment
of notice by registered mail. Mertz v. Lakatos, 33 Pa. Commonwealth Ct.
230, 381 A.2d 497 (1978). In addition, Appellant acknowledges having
received notice of the Board's decision to transfer him and therby
suffered no prejudice.
Appellant's argument that the demotion was invalid because he was
never advised of his tight to a hearing is without merit since he did
receive a h .ring thereby curing any prejudice he may have suffered
initially.
It is true, however, that a deme'ion cannot become effective until
after a hearing is held as required by Section 1151. Black v. Wyalusing
Area School District,, 27 Pa. Commonwealth Ct. 176, 365 A.2d 1352 (1976).
Ap Ilant requests reinstatement and back pay since the BoPri. did not
give him a hearing for approximately seven months after one was requested.
the instant case, the Board's decision to transfer the Appellant
from the poE tion of principal to teacher, was to take effect at the
beginning of the 1978-1979 school year However, the Board did not
realize that its action amounted to a Nonconsensual demotion until
u ry 20, 1979, when the Appellant, for the first time, requ-,:red a
hearing. The Board did not hold a hearing until August 20, 1979. The
reasons for the substantial delay in scheduling a hearing for the Appellant
do not appear in the record. We find the demotion is void for the
period of delay prior to the hearing conducted before the School Board.
Therefore, in this case, Appellant's demotion was void between January
20, 1979, which was the date he requested a hearing and August 20, 1979,
which was the date the hearing regarding his demotion was held.
372,
Since this Opinion uphold& the validity of the Board's demotion,
yet finds a procedural irregularity as to the timeliness of the hearing
provided to the Appellant, we conclude that the Appellant is entitled to
back pay between January 20, 1979, and August 20, 1979. Black, Id.
Accordingly, we enter the following:
ORDER
AND NOW, this 21.:t day of October, 1980, the Appeal of Gary L.
Andrews is hereby dismissed as to e validity o7 his demotion. The
Appeal, ini;ofar as it relates to the isk3u of back pay as defined above
is sustained.
373
Robert G. ScanlonSecretary of Education
3.7 -4
COMMON` H OF PENNSYLVANIA
DEF -!NT OF EDUCATION
Bernice I. harJurg,
Appellant '-
v. Teacher Tenure Appeal No..k,26-79
Mire Penn School District,
Appellee
OPINION
Bernice I.-Hamburg, Appellant herein, has appealed from the
decision of the Board of Directors of the North Penn School District
dismissing her as a professional employee on the grounds of incompe-
tency .
FINDINGS 01\FACT
1. Bernice I. Hamburg was hired by the North Penn School
Diatrict beginning her ernloymL:nt October 2, 1967,as an el,ementary
classroom teacher. N.T. 15, School District Exhibit (SD) 1:4
2. Ms. Hamburg was a tenured professional employee teaching
the second .grade at the time that dismissal proceedings were initiated
against her by Fiperintendent M. Ray Kelly on June 20, 1979. N.T. ,,'
16, SD-2.
374
r3
3. On June 20, 1979, Supef.nt:endent Kelly notified
Ms. Hamburg oy registered mail of his intentiop to recommend 4z4
dismissal on the grounds of incompetency bared on her unsatisfactory
ratings of February 13, 1979, Apri] 20, 1979, and_ June 15, 1979.
SD-4.
4. On June 22, 1979, the Bc.,rd of School Directo s -of the
North Penn School Dis-rict (the noard) noti: d Ms. Ham urg by
registered mail that the Superintendent had recommendee termination
of her contract on the grounds-e incompetency based-on the three
unsatisfactory ratings, and set a hearing for July 5, 1979, SD-5.
1979,
5. Hearings were held in twenty-two sessionsfroia/nly
to November 23, 1979, plus a 'inal meeting on November
26,
30,
1979, for polling the Board, producing a record of over 2,700 pages
of testirriony plus several hundred pages of exhibits.
6. On November 30, 1979, the Board voted 8-0 to adopt Findings
of Fact and an Adjudication discharging Ms. Hamburg. N.T. 2699-2703.
7. All th- incidents involving Ms. Hamburg adduced at the
hearing will not be repeated. What follows are salient facts
/3,--)ven by credible, substantial ev3iende ich facts are deemed
sufficient to uphold Ms. Hamburg's discharg on the grounds of
incompetency.
8. Ms. Hamburg n_ceived an unsatisfactor year end rating for
the 1' /7-78 school year, on DEBE-333 form dated June 21, 1978,
accompanied by anecdotal records, specifically indicating unsats-fac-
tory performan_e in the "Personality" categories of "emotional
stability", "professional relationships", "judgement", and "habits
of conduct". N.T. 231, 443, 1104, :-59, 1825, Letter of Solicitor
Potash to HeL4ing Examiner Rains April 23, 1980, with DEBE 333
enclosed, verbal Stipulation of C, 1sel at Oral Argument before
Hearing Examiner.
9. Ms. Hamburg received an',1nsatisfactory DEBE-333 rating
on or about February 13, 1979, specifically indicating unsatisfactory)
verfornace in the Personality categories of "exercises (prudent)
"maintains poise and cnmposul-t..:". and "maintains professional
attitudes". No numerical ratings were giveri. SD-10. The rating
was accompanied by anecdotal records. SD-10 and SD-8.
. Ms. Hamburg received an unsatisfactory DEPE-333 rating on
or about April 23, 1979, indicating unsatisfactory performance in
the same areas as the previous ratings. No numerical ratings were
given. The rating was accompanied by an anecdotal recgra,/the
sufficiency of which was not challenged on appeal. SD-9.
11. .Ma. Hamburg received an unsatisfactory DEBE-333 rating cn
or ut June 15, 1979 showing unsatisfactory performance in the
same Personality categories. There were both numerical ratings and
an anecdotal record. SD-8.
12. Because of its. Hamburg's unsatisfactory rating for the
1977-78 school year, Principal Trefsgar and Dr. Westcott, Director
rf Elementary Education, set forth in writing "Goals for 1978-79"
for Ms. Hamburg, dated August 24, 1978. ED-1:)..
376
13. These Goals basic:3;,,y were directed toward better rapport
with parents and f professionals, appropriate handling of
children, being a positive model for children, resolving problems
directly with the principal, and giving closer attention to details
such as lunch count and attendance record. St-12.
14. During the 1978-79 school year, Ms. Harburg not only
igncred the Goals established for her by the akillinistration, but
engaged in on-going battles with the administration in which she
often used her second grade students to their detri t. Specific
incidents related belov-.
15, Despite the Goa of closer attention to attendance records,
Ms. Hamburg signed her own name to a child's absence excuse where
the child's parent was sign. N.T. 151-152, 20q5. SD-13.
16. Despite the Goal of reso/v ems with the principal,
NS. Hamburg walked out of e conferee Trefsgar at
-which he attcmpted to diii_uss her AA.3.-yar rating, N,T. 261-262.
17. Ms. Hamburg walked ,out.of a conference with Pincipal
Trefsgar, Dr. Westcott, Director of Elementary Educatic and
Superintendent Kelly on March 1, 1979. N.T, 1372-73.
16. On October 25, 1978, Patricia. Gulick, a teacher ''ith
25 years of service in the Nortl. Penn School District was ha.Ing
a conference with Principal Trefsgar. Miss Hamburg opened the
door and indicated to her to get out. N.T. 194-195, 1670-72.
377
383
Jean Ziegler, Principal Trefthar's secretary, acting as substitute
health aide was taking a child's temperature. Miss Hamburg physi-
cally grabbed her and despite her protestations to wait until she
was finished, took her arm and led her to confront Principal
Trefsgar about a
1619, 2114.
19. An elementary
1975. Thereafter, the
on builaing security.
rooms and office doors
complaint involving the two of them. N.T. 1617-
child had been raped in a nearby schoo' in
North Penn School District adopted a policy
This included having "windows cf all class-
clear and unobstructed by paint and paper
-overings" and using "a 'buddy' system . . when children must
be used for errands in the building." SD-20. N.T. 293-295.
20. Despite this policy, Miss Hamburg obstructed the windows
in her classroom doo. with papers. N.T. 291.
21. The Opening bulletin for teachers states: "DO NOT LEAVE
Y'O'UR CLASS FOR ONE MINUTE WITHOUT SUPERVISION." N.T. 1015.
22. Despite the opening bulletin's clear directive, Ms. Ham-
burg. left her class unsupervised on three occasions. N.T. 134,
394, 1211.
23. Miss Hamburg admitted that she personally took a child
down to the nurse after Principal Trefsgar told her not to and
despite the policy on using the buddy system and the policy against
leaving her class unsupervised. N.T. 2061-2062.
378
24. Despite the policy that children should only leave the
room when necessary and should not be left unsupervised, Ms. Ham-
burg had three of her second graders attempt to use a tape recorder
unsupervised in an open space area in the rear of the building.
N.T. i26.
25. Principal Trefsgar observed Ms. Hamburg's children out
of the classroom unsupervised on several occasions. N.T. 212-214.
26. Throughout the school year, Ns. Hamburg had the habit of
telling her children that the principal was denying them various
privileges which he had net in fact denied them. For example, in
September 1978, Ms. Hamburg took her class to the library without
first consulting the librarian who had a kindergarten class in the
library at that time. This interrupted the librarian's work with
the kindergarten class. Principal Trefsgar, at the librarian's
request, asked Miss Hamburg to check with the librarian before
bringing her class there. N.T. 255-257. Ms. Hamburg then told
the children that Mr. Trefsgar had forbidden them to use the
library again. N.T. 333-334. SD-27.
27. In another 3xample, early in the school y.:_ar, Ms. Hamburg
confronted and wrot:,.. to the principal asking that her lunch time
be strictly honored (i.e. her children not be allowed to return to
class until lunch time was over). Subsequently, she alleged that
he was refusing to allow her children to return to class during
379
lunch; that they were-upset by his refusal; that she gives up
most of her lunch to work with them. N.T. 166-167, 227-229.
SD-14 & 16.
28. On March 13, 1979, without any cause, Ms. Hamburg told
her class of second graders that she wad going to be fired on
April 20, 1979. N.T. 2031, 2034. This greatly upset the child-
ren. N.T. 1912-1916, 2504, 2591.
29. On March 19, 1979, Dr. Westcott wrote to Ms. Hamburg:
I am directing you to cease your involvementof children in matters relating to your goals,evaluations, professional relationships, oryour conditions of employment in the NorthPenn School District. R-71.
30. Nevertheless, on April 20, 1979, again without any cause,
Ms. Hamburg told her class that she was fired and had them pack
up her room. The children were greatly upset. N.T. 1362, 1919,
2504-5, 2560.
31. The children in Ms. Hamburg's class were greatly upset
during the latter part of the school year. N.T. 384-8, 2510, 2560,
2591.
32. Despite the Goal that problems be worked out with the
principal, Ms. Hamburg called Superintendent Kelly, rather than
Mr. Trefsgar,when one child threw a temper tantrum in class near
the end of school. N.T. 2206-2207.
380
33. The situation in Ms. Hamburg's classroom deteriorated
to the point that:
Miss Hamburg instructed her children not to talk to the
principal. N.T. 1918;
one student was transferred to another class for the
last few days of school at his parents' request. N.T. 388, 1925;
a parent wrote to the School Board concerning the
situation under the misimpression (created by Ms. Hamburg)
that it was Mr. Trefsgar rather than Miss Hamburg who had told
the class that she was going to be fired. N.T. 2526-7, SD 85; and
children were frequently crying both in school and at
home. N.T. 1912, 2034, 2513, 2570.
381
DISCUSSION
In addition to challenging the factual findings of the
;chool District, Appellant asserts eight legal reasons for
)verturning her dismissal. These will be dealt with seriatum,
:ollowed by a discussion of the factual issues.
k. Did not the North Penn School District fail to comply with
the mandates of the Pennsylvania School Code in the insti-
tution of charges against your appellant?
Appellant, Bernic-,_ Hamburg, asserts that the notice of charges
tgainst her did not amount to "a detailed written statement of
:harges" as mandated by Section 1127 of the Public School Code,
P.S. 11-1J27. This argument is not compelling.
The notice mailed to Miss Hamburg (School District Exhibit
,) sets forth that Miss Hamburg's termination has been recommended
)n the grounds of incompetency based on three unsatisfactory ratings:
'ebruary 13, 1979 (SD-10) , April 20, 1979 (SD -9) , and June 15, 1979
$D-8). Although the actual ratings and anecdotal records we -e
Lot attached to the notice of charges, there can be no question
that Miss Hamburg had already received them. All three ratings
ear her signatures. and there was no dispute at the hearing below
:hat she had received them.
The ratings and anecdotal records are certainly sufficiently
letailed to give Miss Hamburg adequate notice of the allegations
against her. The testimony of the administration in the hearing
below was limited to matters set forth in those ratings and anec-
dotal records, and the Board's findings of fact were similarly
limited.
The gist of appellant's argument appears tc be that, because
the iatings and anecdotal records were not actually attached to
the notice of charges or quoted verbatim in them, the notice lacks
detail. Appellant would have the Secretary find that it was legally
mandated for the School Board to mail to Miss Hamburg again charges
of which she had already arknnwl,=.AT=.A Y'e el pt Wer. ,41-sntlIstqc,
that the notice was fatally deficient for failure to photocopy and
include materials already in Miss Hamburg's possession; we cannot
believe that Miss Hamburg was genuinely unaware of the charges
asserted against her which she attempted to refute at such length
in the hearing below.
Accordingly, we find that the School Board has met the test
enunciated by the Commonwealth Court in Lucciola v. Commonwealth
25 Pa. Commonwealth Ct. 419, 360 A.2d 310 (1976), that
As long as the substance of the chargesfurnished the professional employeerefers to one of the valid causes fordismissal under Section 1122, statutoryand constitutional procedural require-ments are satisfied. A.2d at 312.
383 3s
B. Was not error committed in the admission and use as evidence
of three alleged 9rof:?.ssional ratings of appellant for the
1978-79 school year?
There are several subparts to appellant Hamburg's opposition
to the admission of her three professional ratings for the 1978-
79 school year:
1) Issuance of three ratings in one year contravenes the
Department of Education's regulation governing ratings which call
for one rating each year;
2) Neither the January 31, 1979, nor the April 20, 1979,
rating assigns numerical values to any of the categories rated;
3) The June 15, 1979, rating is not substantiated by annec-
dotal records concerning Preparation, Technique and Pupil Reaction
although MS. Hamburg was given fewer than 20 points in each of
these categories; and
4) Therefore appellant did not properly receive two consecu-
tive unsatisfactory ratings prior to her dismissal for incompetence.
The first of these arguments attempts to turn the Department's
regulation on its head. Paragraph 3 of "General Rating" in the
Standards for Use of DEB:: 333 states:
Professional employees shall be rated aminimum of once each year. (emphasisadded) 22 Pa. Code §351.21.
384
Appellant interprets the word "minimum" to mean "maximum" so as
to prohibit ratings more frequently than once each year. The
simple answer to this argument is that, as any dictionary will
indicate, the word "minimum" denotes the least quantity possible,
not the largest.
Certainly, a school district will not be allowed to circumvent
tie requirement of two consecutive unsatisfactory ratings for a
dismissal for incompetency by giving two ratings so close together
as to provide insufficient time for improvement. There was no
such allegation here, and such was not the case.
Appellant's second argument, that the Jarvlary and April 1979
ratings are deficient for failure to specify numerical values, has
some basis. Paragraphs 5, 6, 7, and 8 of "General Rating" in the
Standards for Use of DEBE-333, 22 Pa. Code §351.21, clearly call
for numerical ratings in each of the four categories. Neither of
these ratings contains numerical scores. However, both ratings
comply with paragraph 1 of "Detailed Appraisal for Unsatisfactory
Rating" in the DEBE-333 Standards by having a check mark in the
block opposite the category designated unsatisfactory. Also, both
are signed by the rater in the unsatisfactory column; and appellant
does not question that both are accompanied by anecdotal records.
Given this factual background, it is clear that these two
professional ratings were admissible in an administrative hearing
for the purpose of demonstrating that Miss Hamburg was on actual
3385
notice of the District's judgment that her work was unsatisfactory.
Furthermore, it is undisputed that Ms. Hamburg received an
unsatisfactory rating at the end of the 1977-78 school year.
This document, admitted into the record by verbal stipulation
at the oral argument before the Secretary's designee, contains
numerical ratings in all categories, shows an unsatisfactory
rating in Personality, is accompanied by anecdotal records, and
is s::gned by the principal and superintendent. Thus, even if
the January and April 1979 ratings were deemed invalid,
Ms. Hamburg would have still received two consecutive unsatis-
factory ratings: Juna 1978 and June 1979.
Appellant's third argument, that the June 15, 1979, rating
is invalid because there are no anecdotal records supporting the
ratings less than 20 in Preparation, Technique and Pupil Reactions,
does not appear relevant to. th*s appeal. As the School District
cogently argues:
Ms. Hamburg's performance was deter-mined Lo be unsatisfactory on thebasis of her gross deficiency in thearea of personality only. No chargeswere brought against her relative tothe areas of preparation, techniqueor pupil reaction, in which herperformance was deemed marginallysatisfactory.
Thus, Ms. Hamburg was clearly notprejudiced by the absence of evidenceof anecdotal records relative to thosecategories in the record of this case.Brief of Appellee, p. 19
Accordingly, there is no merit to Ms. Hamburg's contention
that her dismissal is invalid for failure to receive two consecu-
tive unsatisfactory ratings.
C. Was not the Appellant subjected to an improper
discriminatory, arbitrary and individual standard
of attaining poorly defined and boundless "Goals"
for evaluation of her professional Performance?
Appellant next contends that it was improper for the
School District to judge her against a set of "goals" that
were drafted for her in August 1973. In this contention as
in her actions during ti'e 1978-79 school year, Ms. Hamburg
misses the whole point of these goals.
With the exception of the last sentence of Goal No. 1, which
will be discussed in Part D infra, the Goals set forth for Ms.
Hamburg constituted perfectly ordinary and reasonable requests of
any public school teacher. Perforce the rating of any teacher in-
volves subjective judgments on the part of the raters. We do not
find that use of these Goals added to the subjective judgments made
of Ms. Hamburg. If anything, the Goals should have aided Ms. Hamburg
by helping her to focus on specific areas in obvious need of improve-
ment. They are far more specific than the brief categories on the
3,4 ,.)
387
DEBE-333 rating form.
The fact is that, judged by any reasonable standards, Ms.
Hamburg's behavior in the 1978-79 school year amply warranted
dismissal.
D. Were not the charges against Appellant premised on an im-
permissible basis: To Wit, as a reprisal for the exercise
of Appellant's constitutionally protected right of free
speech?
Ms. Hamburg argues that her dismissal is in reprisal for
the exercise of free speech. Although there is no evidence in
the record to support a finding of "reprisal", it is clear that
certain phone calls, letters and verbal confrontations make
up part of the charges against her.
The last sentence of Goal No. 1 of the August 24, 1978,
Goals, states:
All written communications are to becleared through the office of thebuilding principal.
Although there may have been some policy justification for
this goal--an effort to have Ms. Hamburg deal directly with the
principal concerning classroom problems rather than constantly
bypass him--it is certain that this goal constitutes an overbroad
interference with free speech.
The right of teachers to free speech is.recognized in a long
line of cases, most recently Givhan v. Western Line Consolidated
388
School District, 439 U.S. 410, 99 S. Ct. 693, 58 L.Ed 2d 619 (1979),
which extended this protection to private conversations between a
teacher and her principal. The free speech rights of teachers are
not without limitation. For example, in Mt. Healthy School District
v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), although
the Court found the teacher's phcne call to a local radio station to
be protected, it Cid not extend that protection to arguments with
school cafeteria employees, referring to students using obscene terms,
and making an obscene gesture to two girls. In this situation in
which the Court found that a teacher's dismissal was based upon both
protected and unprotected activity, the Court stated this rule:
. . . the h-J.rden was properly upon respondentto show that this conduct was a "substantialfactor'--or to put it in other words, that it
was a "motivating factor" in the Boards' deci-sion not to rehire him. Respondent havingcarried that burden, however, the DistrictCourt should have gone on to determine whetherthe Board had shown by a preponderance of theevidence that it would have reached the samedecision as to responder:'s re-employment evenin the absence of the protected conduct. U.S.
at 287, S.Ct. at 576.
Applying this rule to the instant appeal, it is abundantly
clear that even in the absence of the protected conduct, Ms.
Hamburg engaged in a course of conduct during the 1978-79 school
year--as set forth in the findings of fact--which would have
necessitated her termination by the Board.
389
E. Did not the Board commit an error of law and deprive the
Appellant of a fair and impartial hearing by the exclUsion
of a witness subpoenaed by Appellant?
Ms. Hamburg asserts that by excluding the testimony of one
of her witnesses, David F. McCoach, the Board violated Section
1127 of the School Code:
". . . At such hearing all testimony offeredincluding that of . . the accused professionalemployee and his or her witnesses, shall berecorded by a competent stenographer . . ."
and Section 1129 of the School Code:
"After fully ' ring . . all witnesses pro-duced by . . , the person against whom thecharges are pending, and after full, impar-tial unbiased consideration thereof, theBoard . . ."
In this argument Ms. Hamburg is attempting to reduce the
School Code to an absurdity, requiring chool boards to hear
testimony from any witnesses offered by a teacher no matter how
irrelevant, collateral or cumulative. These provisions of the
School Code have never been so interpreted by the Courts, nor
should they be.
At the outset, it must be noted that Ms. Hamburg's hearing
before the School Board was of prodigious length. There were
twenty-three sessions producing a transcripa of over 2,700 pages.
Ms. Hamburg's attorney was given every reasonable opportunity to
,T-(-)0,11ce witnesses on her behalf and cross-examine adinistration
witnesses. (His cross -cxami nation of the principal alone occupies
over 800 pages of transcript.)
Ms. Hamburg's attorney attempted to introduce evidence of
one Dale F. McCoach. In an offer of proof, her attorney set forth
that. Mr. McCoach would testify as to an incident between Mr. McCoach
and Principal Trefsgar in February 973. Mr. Salkinacting as
legal adviser to the Board, upheld the administration's objection
to this testimony on the grounds that it would open up a collateral
issue.
This ruling was proper. Mr. Trefsgar had previously acknow-
ledged the incident with Mr. McCoach on cross-examination. Nt. 737.
Mr. Trefsgar conduct was appropriately not the issue at Ms.
Hamburg's hearing. One incident in 1973 would not, in any event,
establish a course of conduct relevant to the 1978-79 school year.
Nor, even if there was such a course of conduct, would it excuse
or justify M. Hamburg's actions during the 1978-79 schoo_ year.
31
F. Do the charges under the law constitute the Charge of Incompe-
tency?
Ms. Hamburg argues that:
". . . a concession of prove (sic) as toany and all of the allegations would notconstitute a substantiation of an incom-petency charge within the context ofSection 1122 of the Pennsylvania SchoolCode." Appellant's Brief in Support ofAppeal To The Secretary of Education, p.55.
We do not find this argument persuasive. Although the School
Code does not define incompetency, the Pennsylvania Supreme Court
has provided a settled and quite broad definition of the term in
this context. In Horosko v. Mount Pleasant School District, the
Court stated:
"The term 'incompetency' has a 'commonand approved usage'. The context doesnot limit the meaning of the word to lackof substantive knowledge of the subjectsto be taught. Common and approved usagegive much wider meaning. For example, in31 C.J., with reference to a number ofsupporting decisions, it is defined: 'Arelative term without technical meaning.It may bc! employed as meaning disqualifi-cation; Inability; incapacity; lack ofability, legal qualifications, or fitnessto discharge the required duty.' In Black'sLaw Dictionary (3rd edition) page 945, andin Bouvier's Law Dictionary, (3rd revision)p. 1328, it is defined as 'Lack of abilityor fitness to discharge the required duty.'
.
Webster's New International Dictionarydefines it as a 'want of physical, intellec-tual or moral ability; insufficiency; inad-equacy; specif., want of legal qualifications
392 3
or fitness.' Funk & Wagnalls StandardDictionary defines it as 'General lackof capacity of fitness, or lack of thespecial qualities required for a par-ticular purpose.'"
335 Pa. 369, 374-75, 6 A.2d 8:16, 869-70 (1939).
Accord, StefZen v. South Middletown Board of School Directors,
32 Pa. Commonwealth Ct. 187, 191-192, 377 A.2d 1381, 1384 (1977).
In Steffen, the Commonwealth Court further notes:
This Court has stated that failure tomaintain adequate classroom control isserious enough, without more, to warrantan unsatisfactory rating for a teacher.English v. North East Board of Education,22 Pa. Cmwlth. 240, 348 A.2d 494 (1975).In the instant case, not only was Steffenlacking in the ability to properly instructand motivate students, but he maintainedlittle or no disciplinary control overthem. Commonwealth Ct at 192, A.2d at1384.
As set forth in the Findings of Fact and in Section I below,
it is evident from the voluminous testi nny that Miss Hamburg
failed to maintain adequate classroom control and lacks fitness
to discharge the required duties of a school teacher. These
findings are in accord with the allegations against Miss Hamburg,
and accordingly dismissal for incompetency is warranted.
393 JtjJ
G. Were not the unsatisfactory ratings relied upon by the North
Penn School District the product of discriminatory, arbitrary
and contrived conduct and procedures pursued maliciously?
Appellant Hamburg arcTues at length that the evidence shows
fla pattern of administrative harassment and guile which should bear
on the weight and credibility to be accorded the School Administra-
tion's testimony." Appellant's Brief In Support of Appeal to the
Secretary of Education, p. 56. Appellant then recounts her litany
of many perceived wrongs at the hands of the administration going
back to 1970. In this argument as at her hearing in general, Miss
Hamburg seeks to attack members of the school administration rather
than defend or explain her own actions vis-a-vis the children in
her classroom in the 1978-79 school year.
There is nothing in Miss Hamburg's history of complaints which
inclines us to overturn the School Board's findings of credibility.
Indeed, in many instances the testimony of the administration's
witnesses are confirmed not only by appellant's witnesses, but also
by appellant herself. As is set forth at length in the Findings
of Fact and in Section I, below, the credible evidence does not
support a finding of "discriminatory, arbitrary and contrived conduct
and procedures pursued malicously" by the administration, but rather
incompetency on the part of Miss Hamburg.
394
H. Was not the Appellant deprived of Due Process and a fair and
impartial hearing by the excessive allowance of inflammatory
and prejudicial hearsay?
Without citing any example, appellant asserts that hearsay
evidence was repeatedly allowed at her hearing depriving her of
process and a fair and impartial hearing. Appellant refers
to case law for the proposition that hearsay evidence, properly
objected to, is lot competent to support a finding of the Board.
Other case _aw indicates:
. . an adjudication of an administrative.1gency may not be founded wholly on hear-say evidence, although such evidence maybe admitted in cases made cut by circumstan-tial evidence, if not inconsistent with theundisputed facts, for the additional lightit may throw on the matter. (citationsomitted.) Blcilevens v. State Civil ServiceCommission, 11 Pa. Commonwealth Ct. 1, 5,312 A. 2d 109, 111 (1973).
Applying either rule, we find no violation of Miss Hamburg's
rights. As set forth in the Findings of Fact and in Section I
below, a finding of incompetency is clearly indicated not only
on the basis of direct testimony of administration witnesses,
but also on her own testimony and that of her own witnesses, which
only tended to corroborate the adminstration's allegations.
395
I. _Does the testimony fail to warrant the dismissal of Appellant
for the reason of incompetency?
Lastly, appellant argues that the c-arge of incompetency is
not supported by the evidence adduced at the hearing. We find that
this charge has been abundantly demonstrated.
No effort has been made in the Findings of Fact herein to
relate all the incidents involving Miss Hamburg in the 1978-79
school year, her lack of cooperation with the administration, her
devastating effect upon morale at Hancock Schook, her efforts to
intimidate parents, fellow teachers and Lupervisors.
The testimciy, including that presented on behalf of Miss
Hamburg, demonstrates that she repeatedly failed to supervise her
children properly, failed to obey instructions relating to security
of the building and safety of children, repeatedly failed to even
attempt to work out problems directly with her principal to the
point of walking out of conferences, told her children untruths
that the principal was denying them various privileges, falsely
told her children that she was being fired in April, and had her
children dismantle her classroom in April, all this causing extreme
upset to the children.
She herself admitted on the hearing stand many of these
actions. Her witnesses corroborated their children's upset.
396
There can be no justili:ation for this lack of super7ision
and cruel 77,i sus of her sconcl (7racThrs by .!i.ss H:rrburc.. own
admissions '.1early verify a lack of fitness and qualities to be
a teacher, not only her lack of classroom control, but her
devastating effect upon the children with those care she was
entrusted.
4
397
AND NON, this 19th day of September , 1980, it is hereby
Ordered and Decreed that the decision of the School Board of the
North Penn School District dismissing Appellant on the ground
of incompetency he sustained.
Pobert G. ScanlonSecretary of E_.,icatHr-,n
398
LIST OF CASES AND CAUSES FOR DISMISSAL
I>MORAEITY
David M. Eendl v. Board of School Directorsof the Greater Latrobe School District
Opinion No. 1-79, July 5, 1979
Ruth S. Grant v. Board of Educationof Centennial School. District
Opinion No. 17-79, August 10, 1981
Charles R. Kackenberry, Jr. v. Board of DirectorsMifflin County School District
Opinion No. 29-77; January 4, 1982
William Harr v. Carmichaels Area School DistrictOpinion No. 18-78, February 21, 1980
Lctte T. Krall v. Bethel Park School DistrictOpinion No. 9-79, November 30, 1981
Roger J. Morgan v. Altoona Area School DistrictOpinion No. 12-79, December 7, 1979
Joseph Allen Raymond v. Western Wayne School DistrictOpinion No. 38-78, September 30, 1980
James P. Weaver, Jr. v. Uniontown Area School DistrictOpinion No. 8-79, December 27, 197
INCOMPETENCY
Frederick W. Browne v. Abington School DistrictOpinion No. 24-79, January 8, 1982
?age
59
238
15
171
187
46
15?
336
:uth S. 11-.int V. Board -f Education
of Centennial School DistrictOpinion No. 17-79, August 10, 1981 238
Bernice T, v. North Penn School DistrictOpinion No. 26-79, September 19, 1980 374
John A. Mignone v. Radnor Township School District:pinion No. 20-79, February 26, 1981 275
PERSISTENT NEGLIGENCE
Douglas A. Behn v. Board of School DirectorsBethel Park School DistrictOpinion No. 2-79, December 12, 1979
399
72
Frederick W. Browne v. Abington School DistrictOpinion Nc. 24-79, January 8, 1982
Page
336
Myron L. Fasnacht v. Eastern York School DistrictOpinion No. 18-79, September 4, 1980 2:53
Ruth S. Crant v. Board of Educationof Centennial School District
Opinion No. 17-79, August 10, 1981
Michael Micklow v. Fox Chapel Area School DistrictOpinion No. 16-79, October 2, 1981 214
John A. Mignone v. Radnor Township School DistrictOpinion No. 20-79, February 26, 1981 275
Florence Ryan v. Board of School Directorsof Lackawanna Trail School DistrictOpinion No. 22-79, January 4, 1982 301
PERSISTENT AND WILLFUL VIOLATION OF SCHOOL LAWS
Douglas A. Behn v. Board of School DirectorsBethel Park School District
Opinion No. 2-79, December 12, 1979 72
Marjorie Brennan v. Berwick Area School DistrictOpinion No. 7-79, August 24, 19P1 135
Frederick W. Browne v. Abinon School DistrictOpinion No. 24 -79, January 8, 1982 336
Ruth S. Crant v. Board of Educationof Centennial School District
Opinion No. 17-79, August 10, 1981 238
William Harr v. Carmichaels Area School DistrictOpinion No. 18-78, February 21, 1980 15
Bette T. Krall v. Bethel Park School DistrictOpinion No. 9-79, November 30, 19L1
Michael Micklow v. Fox Chapel Area School DistrictOpinion No. 16-79, October 2, 1981
171
214
John A. Mignone v. Rad..-!or Township School District
Opinion 20-79, February 26, 1981 275
0TH^R
Accumulated Sick Leave and Sabbatical:
Rebecca Raybuck v. DuBois Area School DistrictOpinion No. 22-78, December 19, 1979 29
400
Page
Entitlement to Back
Carroll Bittner v. Jersey c.,cre Area School DistrictOpinion No. 13-79, February 12, 1982 193
Mandatory Retirement Age:
Lewis Ziegler v. Ridgeway Area School DistrictOpinion No. 15-79, September 19, 1980 207
Professional Employee Status:
Appeal of Patricia Brumbaugh v. Tussey MountainSchool District
Opinion No. 5-79. September 10, 1979 125
C. Michael Noble v. Lincoln 2diate Unit
Opinion No. 4-79. September 10, 1979 102
Mary Burk OcchiTinti v. Board of School Directorsof Old Forge School DistrictOpinion No. 15-77A, April 29, 1981
Howard H. Moon v. Board of School. Directorsof Bethel Park School DistrictOpinion No. 28-78, November 6, 1980 36
Barbara C. Beck v. York City School DistrictOpinion No. 39-78, February 5, 1982 55
Judith Gurmankin v. Philadelphia Schocl DistrictOpinion No. 19-79, February 11, 198: 271
401
LIST OF CASES OF DEMOTION
DEMOTION IN SALAR':
?age
Gary L. Andrews v. Lebanon Area School District
Opinion No. 25-79, October 1cF 360
Albert G. Burton v. Bo--d of School Directorsof °eneral Braddock Area School District
Opinion No. 3-79, July 2, 19/9 , <
Russell C. Thomas v. Board of Directorsof Pottstown School District
Opilion No. 10-79, February 29, 1980
DEMOTION IN TYPE OF POSITION
87
180
Gary L. Andrews v. Lebanon Area School District
Opinion No. 25-79, October 21, 1980 360
Albert G. Burton v. Board of School Directorsof caneral Braddock Area School District
Opinion No. 3-79, July 2, 1979 87
Raymond M. Pecuch v. California Area School District
Opinion No 23-79, September 9, 1980 320
Russell C. Thomas v. Board of Directors
of Pottstown School DistrictOpinion No. 10-79, February 29, 1980
402
... 180